JUDGMENT :

SANJAY K. AGRAWAL, J.

1. This second appeal preferred by the appellant/plaintiff was admitted for hearing on the following two substantial questions of law:

“1. Whether the lower appellate Court was justified in reversing the judgment of the trial court without properly appreciating the evidence available on record?

2. Whether the 1 appellate court has committed an error of law by deciding the question of limitation when the same was not an issue before the trial court?”

For the sake of convenience, the parties will hereinafter be referred as per their status before the trial Court.

2. The parties are Mohammedans. The suit property was originally held by Rojid Miya. Plaintiff is the daughter of Rojid Miya and defendant No. 1 is son of Rojid Miya and defendant No. 3 is their mother and widow of Rojid Miya.

3. Plaintiff filed a suit for declaration of title, partition and mesne profit against the defendants stating inter-alia that the suit property was the self-acquired property of her father Rojid Miya, therefore, she has right, title and interest over the said suit property for which she filed an application before the Revenue Court for mutation but that was rejected and appeal preferred was also dismissed on the ground that she has already relinquished her share in the suit property as she has received 12 acres of land from her father by gift deed dated 16.09.1974 which she has already accepted and as such, she is entitled for decree for partition and possession.

4. Defendants No. 1 and 3 resisted the suit by filing their written statement stating inter-alia that Rojid Miya, in his lifetime, has already given 9.97 acres of land to defendant No. 3 on 27.10.1959 by registered gift deed and after the death of Rojid Miya, defendants No. 1 and 3 had got their names registered in the revenue records on the rest of the land owned by Rojid Miya as his successors which is in the knowledge of the plaintiff. They further pleaded that plaintiff, in token of having received her share of 4.747 acres of land as well as some cash and gold ornaments, she has already relinquished her title over the suit property by relinquishment deed dated 25.02.1989 (Ex.D/1), as such, she is not entitled for any share in the suit property.

5. Learned trial Court framed as many as 7 issues and after appreciation of oral and documentary evidence on record partly decreed the suit vide its judgment and decree dated 28.03.2006 holding that plaintiff is entitled for equal share in the suit property as defendants No. 1 and 3 and granted decree for partition.

6. On appeal being preferred by defendants No. 1 and 3 under Section 96 of CPC, learned first appellate Court allowed the appeal vide impugned judgment and decree dated 12.10.2010 holding that by way of relinquishment deed dated 25.02.1989 (Ex.D/1), plaintiff has already relinquished her title over the suit property and further held that the suit is barred by limitation against which this second appeal has been preferred by the appellant/plaintiff in which two substantial questions of law have been framed and set out in the opening paragraph of the judgment.

7. Mr. Sushil Dubey, learned counsel for the appellant/plaintiff, would make twofold submission. Firstly, that the alleged relinquishment deed (Ex.D/1) executed by plaintiff in favour of the defendants is only an affidavit and an affidavit is not evidence within the meaning of Section 3 of the Indian Evidence Act, 1872 and that can be used for evidence only if for sufficient reason the Court passes an order under Order 19 Rule 1 and 2 of CPC and he would rely upon the decision rendered by the Supreme Court in the matter of Smt. Sudha Devi vs. M.P. Narayanan and Others, (1988) 3 SCC 366. Secondly, the plea that plaintiff's suit is barred by limitation is a mixed question of fact and law which ought to have been raised before the trial Court which was n