Mr. P. K. Bahri, J. ( 1 ) THIS second appeal is directed against the judgment of the Additional District Judge dated 3/01/1981 by which he haddismissed the appeal brought by the appellant challenging the judgment anddecree of the learned Sub-Judge dated January 10. 1975 by which he hadgranted a mandatory injunction requiring the appellant to remove anddemolish the platform marked AFG and iron shutter marked EF existing infront of the tenanted shop of the appellant and the permanent injunction isalso granted restraining the appellants from using the land in front of theshop for any purpose other than the common passage after demolishing theplatform and the iron shutter. This shop of the appellant which is tenantedby him is situated at the end of a blind lane. In front of the shop the disputed chabutra and iron shutter have been put. ( 2 ) THE case of the owner was that this common land in front of theshop was meant for use of all the customers and the shopkeepers and appellant had converted this portion of the land in front of the shop to his exclusive use. A finding of fact has been given by the two Courts below thatthis particular part of the open land in front of the shop was not part of thetenanted premises. That finding of fact is not being challenged beforeme now. ( 3 ) LEARNED Counsel for the appellant has, however, vehemently argued that a plea had been taken in the written statement that the landlord hadacquiesced in the existence of the said platform as well as wooden door whichexisted earlier and which was than changed in the iron shutter by the appellant and no finding has been given by the two Courts below on this aspect ofthe case. Issues framed in the suit were as follows : (1) Whether the plaint is signed and verified properly ? (2) Whether the suit is maintainable in the present form ? (3) Whether the Chabutra in dispute is existing at the spot since1955 and was built by the landlord ? If so, its effect ? (4) Whether the Chabutra is appertenant to the tenanted premises ?if so, its effect ? (5) Whether the Chabutra is in possession and exclusive use of thedefendant since 1955? (6) Whether the plaintiff is estopped from filing the present suit ? If so, its effect ? (4) Whether the Chabutra is appertenant to the tenanted premises ?if so, its effect ? (5) Whether the Chabutra is in possession and exclusive use of thedefendant since 1955? (6) Whether the plaintiff is estopped from filing the present suit ? (7) Whether defendant has a right to put up iron shutter in placeof wooden shutter ? (8) Whether wooden shutter existed prior to the iron shutter ? ( 4 ) IT is surprising that although a specific issue was framed as to theexistence of wooden shutter prior to the iron shutter as mentioned in Issueno. 8, still the Lower Court has not given any finding on this aspect of theissue at all. The two Courts below have proceeded on the basis that if thisparticular Chabutra and the shutters were not part of the tenanted premises,the plaintiff is to be granted necessary relief of perpetual injunction andmandatory injunction. The Lower Courts ignored the provisions of Section 38 (3) (c) of the Specific Relief Act which makes it clear that relief ofinjunction is to be granted only when invasion is such that the compensationin money would not afford adequate relief. ( 5 ) IN case the Lower Courts had given a proper finding pertaining toissue No. 8 as well as pertaining to Issue No. 6 after giving the finding offact as to when the Chabutra came into existence, only then the Lowercourts could have been able to exercise their discretion of grant of perpetualinjunction keeping in view the aforesaid provisions contained in sub-clause (c) of Sub-section 3 of Section 38 of the Specific Relief Act. The attentionof the two Courts-below was not perhaps drawn to the said provisions ofsection 38 and the necessity of giving a finding of fact as to at what point oftime this Chabutra came into existence. ( 6 ) COUNSEL for the appellant wanted to refer to certain documentsto show that it was evident that the Chabutra bad came into existence atleast two and a half years or three years prior to the filing of the suit. I donot think that it is desirable that this Court should enter upon this enquiry. The finding of fact is to be given by the Trial Court and then by the firstappellate Court before this Court, can examine the matter in appeal if anyquestion of law arise on that score. I donot think that it is desirable that this Court should enter upon this enquiry. The finding of fact is to be given by the Trial Court and then by the firstappellate Court before this Court, can examine the matter in appeal if anyquestion of law arise on that score. ( 7 ) IN my view this appeal has to be allowed and the judgments of thetwo Courts have to be set aside and the matter has to be remanded on givingdirections to the Trial Court that Trial Court must give a finding of fact onissue No. 8 and also on Issue No. 6. After the Lower Court comes to afinding of fact as to when Chabutra came into existence, the Court must alsoexamine the question whether perpetual injunction or mandatory injunctionshould be granted or not keeping in view the provisions of Section 38 (3) (c)of the Specific Relief Act, 1963. The finding of fact already arrived at thatthe Chabutra was never part of the tenanted premises is not to be re-openedby the Courts below. The Lower Court shall now confine its finding to thepoints mentioned above and the Counsel for the appellant does not press anyother point. ( 8 ) THE case be sent to the District Judge who should assign this caseto any particular Sub-Judge for deciding the matter afresh. Parties toappear before the District Judge for further proceedings on 19/04/1993.