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PETITIONER: THE SECRETARY, TALIPARAMBA EDUCATION SOCIETY

       Vs.

RESPONDENT: MOOTHEDATH MALLISSERI ILLATH M.N. & ORS.

DATE OF JUDGMENT:       03/03/1997

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Live 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.      The short  question that  arises for  consideration is: whether the  respondents are entitled to terminate the lease granted to  the appellant?  Clause 6 of the lease-deed reads as under:      "The lessee  need surrender and the      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   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    eduction      institution, the  lessor will  have      the absolute right of re-entry."      In exercise  of the  right  under  the  said  covenant, notice  of   termination  was   given  by  the  respondents. Resultantly, the  respondents 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 thereof  as grounds to terminate the lease, they more 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 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.

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Consequently, he  decreed the  suit. Thus,  this  appeal  by special leave.      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  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  be terminate the lease. We find no force in the contention. The question whether  the property  was allowed to be trespassed was gone  into by  the trial  Court and 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 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 is 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 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 No.6 of the lease. The High Court was grossly  in error  in  trenching  upon  appreciation  of evidence under  Section 100 CPC and 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 confirmed but without costs.