RSA No.2110 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2110 of 2008 Date of Decision:19.12.2008 Sampuran Singh ....appellant Versus Pritam Singh .....respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.Malkeet Singh, Advocate for the appellant **** RAKESH KUMAR GARG J. The plaintiff filed a suit for possession by way of specific performance of the agreement to mortgage dated 31.05.2002 regarding the land measuring 15 kanals 12 marlas with consequential relief of permanent injunction or in the alternative for recovery of Rs.2,93,000/- as fully detailed in the head note of the plaint against the defendant. The suit was contested by the defendant taking various preliminary objections. On merits, it was stated that the defendant never executed any agreement to mortgage his land in favour of the plaintiff. Receipt of any amount from the plaintiff was also denied. It was further stated that the said document was forged and fabricated. Other averments made in the plaint were also denied and the defendant prayed for dismissal of the suit with costs. After hearing both the sides, the trial Court decreed the suit of the plaintiff for recovery of a sum of Rs.2,43,000/- with interest at the rate of 6% per annum from the date of institution of the suit till realization of RSA No.2110 of 2008 2 the decretal amount but the suit for specific performance to mortgage was dismissed. Appeal filed by the defendant challenging the aforesaid judgment and decree of the trial Court in the Lower Appellate Court was also dismissed vide impugned judgment and decree dated 07.01.2008. Still not satisfied with the aforesaid judgment and decree of the Courts below the defendant-appellant has filed the instant appeal. Learned counsel for the appellant has vehemently argued that the Courts below have wrongly granted the alternative relief of recovery of Rs.2,43,000/- to the plaintiff-respondent as under issue No.2 the plaintiff-respondent has been declined the relief of possession by way of specific performance of the agreement to mortgage the land in dispute. I have heard learned counsel for the appellant. I find no merit in the contention raised by him. Admittedly, agreement in question is an agreement to mortgage. The plaintiff-respondent filed this suit for specific performance of the agreement to mortgage of usufructuary mortgage. Since the mortgager has always the right to redeem the property within limitation and the usufructuary mortgagee cannot become an owner,court cannot give directions to the defendant to execute the usufructuary mortgage in favour of the plaintiff. I am supported in my view by the law laid down in Sardari Lal versus Kartar Singh reported in 1998 (3)CCC 65. Therefore, the Courts below were right in law while declining the relief of specific performance of the agreement to mortgage to the plaintiff-respondent. Since the agreement in question has been proved, the plaintiff was entitled to the alternative relief for the recovery of earnest money which he had paid to the defendant at the time of execution of the agreement. It may be added that the appellant could not find fault with the findings of the Courts below with regard to the execution of the agreement RSA No.2110 of 2008 3 in question in favour of the plaintiff-respondent. For the reasons recorded above, I find no merit in this appeal. Dismissed. (RAKESH KUMAR GARG) JUDGE 19.12.2008 neenu