THE SECRETARY, TALIPARAMBA EDUCATION SOCIETYversusMOOTHEDATH MALLISSERI ILLATH M.N. AND ORS.

A      THE SECRETARY, TALIPARAMBA EDUCATION SOCIETY
                             v.
         MOOTHEDATH MALLISSERI ILLATH M.N. AND ORS.

                                  MARCH 3, 1997

B               (K. RAMASWAMY AND G.T. NANAVATI, JJ.]

           Lease-{]ser of leased propertJTenns of lease-Deed stipulating that
    lessor cannot claim to recover property so long as it is used for the purpose
    of educational institution-Notice of tennination given-Subsequently suit
C   filed on the grounds of trespass into property and user thereof for cultural
    purposes and receipt of amount from such user-Held, initially under the
    lease, a right of property was actually granted-Trial court and appellate court
    recorded concurrent findings that infact there was no trespass and there is no
    misuse or contravention of tenns of the lease-Though some shops were
    constmcted on the land and some of the rooms were let out for cultural
D   purposes and marriage purposes, but the rent derived therefrom is being used
    for the maintenance and mnning of the educational institute-The user was
    not detrimental to the purpose for which lease was granted-Educational
    institution.

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1872 of
E 1997.
         From the Judgment and Order dated 24.6.96 of the Kerala High
    Court in S.A. No. 2 of 1993.

          C.S. Vaidyanathan and Ramesh Babu M.R. for the Appellant.
F
         T.L.V. Iyer, S. Balakrishnan, A. Raymond, M.K.D. Namboodri and
    G. Prakash fot the Respondents.

          The following Order of the Court was delivered :

G         Leave granted.

          This appeal by special leave arises from the judgment of the learned
    Single judge of the Kerala High Court, made on June 24, 1996 in S.A. No.
    2/1993.

H          The short question that arises for consideration is : whether the
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            SECY. TALIPARAMBA EDUCATION SOCY. '· MOOTHEDATH MALLISSERI ILLATH M.N.   621

     respondents are enti~ed to terminate that lease granted to the appellant?             A
     Clause 6 of the lease-deed reads as under :

               "The lessee need not surrender and ihe lessor cannot claim to
               recover the property or the management of the institution from
               the Society so long as it is used for the purpose of an education
               institution. But if it over happens that the site and buildings are         B
             . used for purpose other than those for which they are intended and
               or the lessee finds it not possible to manage the institution as an
               education institution, the lessor will have the absolute right to
               re-entry."
                                                                                           c
             In exercise of the right under the said convent, notice of termination
      was given by the respondents. Resultantly, the· respondent~ filed a suit.
      Though elaborate contentions were raised for grant of the relief, namely,
      user of the property for cultural purposes and receipt of the amount from
    . such user, to allow others to trespass into the property and make use                D
)     ltiereof as grounds to terminate the lease, they were negatived by civil
•     Court. Incidentally, it was also a lease of the management of the institution.
      The trial Court as well· as the appellate Court negatived the contentions
      and concurrently upheld the .claim of the appellant that there was no
      breach of the covenant. But in the Second Appeal, the learned Judge on
      appreciation of evidence has held that the respondents had allowed the               E
      property to be trespassed, used the property for purposes other than the
      one for which it was intended and, therefore, the respondents are entitled
      to terminate the lease. Consequently, he decreed the suit. Thus, this appeal
      by special leave.
                                                                                           F
           Shri Vaidyanathan, learned senior counsel for the appellant, has
     contended that in view of the concurrent findings recorded by the courts
     below, the view taken by the High Court is wholly unjustifiable. We find
     the contention is well founded. Shri Vishwanatha Iyer, learned senior
     counsel for the respondents, has contended that in view of the finding
     recorded by the High Court, the various points discussed and the finding              G
     recorded by the Courts below the claims made out by the respondents to
     have the lease terminated· is correct. Initially, under .the lease a right of
     property was actually granted. It· was argued that since the property was
     misused by the management which• was· handed· over to the appellant, the
     respondents are entitled to terminate the lease. We fmd no force in the               H
   622                  . SUPREMECOURTREPORTS                  [1997] 2 S.C.R .

A contention. The question whether the property was allowed to be
  trespassed was gone into by the trial Court and a finding was recorded that
  they did not acquiesce to the trespass and in fact there was no trespass. It
  has not been established that user of the property was for purposes other
  than those for which it was intended. It is true that the shops were
B constructed on some portion of the land but the rent derived therefrom is
  being used for the maintenance and running of the ·educational institution.
  Therefore, the user was not detrimental to the purpose for which lease was
  granted. It s also an admitted position that some of the rooms were let out
  for cultural purposes and marriage purpose, but that is not detrimental to
  the running and imparting of education to the students. Obviously, these
C acts are done to augment the funds of the Society for proper management.
  Under those circumstances, the trial Court and the appellate Court came
  to the concurrent conclusion that there is no misuser or contravention of
  covenant N~. 6 of the lease. The High Court was grossly in error in
  trenching upon appreciation of evidence under Section 100 CPC and
D recorded reverse finding of fact which is impermissible.
           The appeal is, accordingly allowed. The judgment of the High Court
                                                                                  ,
    is set aside. The decrees of the trial Court and the appellate Court stand
    confumed but without costs.

    R.P.                                                     Appeal allowed.



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