1997 INSC 0261
                                   Secretary, Taliparamba Education Society

                                                           Vs

                                 Moothedath Mallisseri Illath M.N. and Others

                                          Civil Appeal No. 1872 of 1997

                                       (K. Ramaswamy, G. T. Nanavati JJ)

                                                      03.03.1997

                                                        ORDER

1. Leave granted.

2. This appeal by special leave arises from the judgment of the learned Single Judge of the Kerala
High Court, made on 24-6-1996 in SA No. 2 of 1993.

3. 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 not 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 educational institution. But if it ever happens that the site and buildings
                  are used for purposes other than those for which they are intended and/or the lessee
                  finds it not possible to manage the institution as an educational institution, the lessor
                  will have the absolute right of re-entry."

4. 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
the grant of 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 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 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.

5. 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
unjustified. We find the contention is well founded. Shri Vishwanathan 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 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 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 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 6 of the lease. The High Court was grossly in error
in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse
finding of fact which is impermissible.

6. 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.