Secretary, Taliparamba Education Society Vs. Moothedath Mallisseri Illath M.N.
& Ors  INSC 234 (3 March 1997)
RAMASWAMY, G.T. NANAVATI
O R D
E R Live granted.
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.
short question that arises for consideration is:
the respondents are entitled to terminate the lease granted to the appellant?
Clause 6 of the lease-deed reads as under:
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.
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
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.
he decreed the suit. Thus, this appeal by special leave.
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.
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
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