L.N. MITTAL, J. (Oral) - Defendants no. 1 to 9 have filed the instant second appeal having failed in both the courts below.

2. Suit was filed by Hukmi Devi plaintiff no. 1 (since deceased and represented by respondents no. 1 to 7) and Krishna Devi plaintiff no. 2/respondent no. 8 against appellants/defendants no. 1 to 9 and Sindhu Kaur defendant no. 10/respondent no. 9. Plaintiffs' case is that Avtar Singh predecessor of the defendants mortgaged the suit land with plaintiffs Hukmi Devi and Krishna Devi vide mortgage deed 20.6.1990 for Rs 55,000/-and subsequent mortgage deed dated 19.6.1991 for Rs 16,000/-i.e. for total mortgage amount of Rs 71,000/-. After creation of mortgage, the suit land was given to Avtar Singh for cultivation as tenant on 1/3rd batai. However, neither Avtar Singh nor defendants, who succeeded him after his death, paid any batai to the plaintiffs. Accordingly, the plaintiff sought possession of the mortgaged land in suit and in the alternative, claimed recovery of Rs 71,000/-as mortgage amount and Rs 73,340/-as interest @ 1% per month i.e. total amount Rs 1,44,340/-.

3. Defendants broadly denied the plaint averments. It was pleaded that Avtar Singh never mortgaged suit land nor received any mortgage money. Avtar Singh had been taking other land of plaintiffs on batai and the plaintiffs might have obtained his thumb impressions by fraud and misrepresentation. Various other pleas were also raised.

4. Learned Civil Judge (Junior Division), Kurukshetra vide judgment and decree dated 25.3.2006 decreed the plaintiffs' suit for recovery of Rs 1,44,340/-with interest @ 6% per annum from the date of filing of suit till recovery. First appeal preferred by the defendants has been dismissed by learned Additional District Judge, Kurukshetra vide judgment and decree dated 16.5.2008. Feeling aggrieved, defendants no. 1 to 9 have preferred the instant second appeal.

5. I have heard learned counsel for the parties and perused the case file.

6. Learned counsel for the appellants contended that mutation Ex. P7 of the first mortgage dated 20.6.1990 was sanctioned in the year 1994 after the death of Avtar Singh without notice to the defendants and in their absence. However, this circumstance would not invalidate the mortgage because mutation is not the basis or document of rights and liabilities of the parties. Mutation is sanctioned to update the revenue record. The basis of title and rights and liabilities of the parties is deed of alienation i.e. sale deed, mortgage deed, gift deed etc. In the instant case, mortgage deeds are the basis of claim of the plaintiffs. Consequently, aforesaid contention of relating to mutation is not sufficient to negative the claim of the plaintiffs.

7. Learned counsel for the appellants also contended that first mortgage was allegedly for Rs 55,000/-but sum of Rs 15,000/-only was paid before the Sub Registrar at the time of registration of the mortgage deed whereas no amount was paid before the Sub Registrar at the time of registration of second mortgage deed for Rs 16,000/-. It was contended that payment of balance amount as recited in the mortgage deeds has not been proved. This contention also cannot be accepted. Payment of Rs 15,000/-before the Sub Registrar stands established from the endorsement of the Sub Registrar whereas payment of the balance amount was accepted by the mortgagor by recitals in the mortgage deeds.

8. Learned counsel for the appellants also contended that the suit is barred by limitation as the suit for recovery was filed more than three years after the execution of the mortgage deeds, the suit having been filed on 22.4.1999. It was contended that limitation for filing the suit is governed by residuary Article 113 of the Schedule to the Limitation Act, 1963 prescribing three years as the limitation period. Reliance in support of this contention has been placed on judgment of Hon'ble Supreme Court in Monimala Devi vs. Indu Bala Debya and others, AIR 1964 SC 129