JUDGMENT
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 had dismissed the appeal brought by the appellant challenging the judgment and decree of the learned Sub-Judge dated January 10. 1975 by which he had granted a mandatory injunction requiring the appellant to remove and demolish the platform marked Afg and iron shutter marked Ef existing in front of the tenanted shop of the appellant and the permanent injunction is also granted restraining the appellants from using the land in front of the shop for any purpose other than the common passage after demolishing the platform and the iron shutter. This shop of the appellant which is tenanted by 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 that this particular part of the open land in front of the shop was not part of the tenanted premises. That finding of fact is not being challenged before me now.
(3) Learned Counsel for the appellant has, however, vehemently argued that a plea had been taken in the written statement that the landlord had acquiesced in the existence of the said platform as well as wooden door which existed 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 of the 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 upper tenant to the tenanted premises? If so, its effect ?(5) Whether the Chabutra is in possession and exclusive use of the defendant 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 place of 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 the existence 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 the issue at all. The two Courts below have proceeded on the basis that if this particular Chabutra and the shutters were not part of the tenanted premises,the plaintiff is to be granted necessary relief of perpetual injunction and mandatory injunction. The Lower Courts ignored the provisions of Section 38(3)(c) of the Specific Relief Act which makes it clear that relief of injunction is to be granted only when invasion is such that the compensation in money would not afford adequate relief.
(5) In case the Lower Courts had given a proper finding pertaining to Issue No. 8 as well as pertaining to Issue No. 6 after giving the finding of fact as to when the Chabutra came into existence, only then the Lower Courts could have been able to exercise their discretion of grant of perpetual injunction keeping in view the aforesaid provisions contained in sub-clause(c) of Sub-section 3 of Section 38 of the Specific Relief Act. The attention of the two Courts-below was not perhaps drawn to the said provisions of Section 38 and the necessity of giving a finding of fact as to at what point of time this Chabutra came into existence.
(6) Counsel for the appellant wanted to refer to certain documents to 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 do not 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 first Appellate Court before this Court, can examine the matter in appeal if any question of law arise on that score.
(7) In my view this appeal has to be allowed and the judgments of the two Courts have to be set aside and the matter has to be remanded on giving directions to the Trial Court that Trial Court must give a finding of fact on Issue No. 8 and also on Issue No. 6. After the Lower Court comes to a finding of fact as to when Chabutra came into existence, the Court must also examine the question whether perpetual injunction or mandatory injunction should 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 that the Chabutra was never part of the tenanted premises is not to be re-opened by the Courts below. The Lower Court shall now confine its finding to the points mentioned above and the Counsel for the appellant does not press any other point.
(8) The case be sent to the District Judge who should assign this case to any particular Sub-Judge for deciding the matter afresh. Parties to appear before the District Judge for further proceedings on 19/04/1993.