ARUN KUMAR MISHRA,J.

( 1 ) THE defendant has filed this second appeal aggrieved by the reversal of the judgment and decree passed by the trial Court. The trial Court dismissed the suit. The Appellate Court has allowed the appeal of the plaintiff and held the plaintiff to be owner to the extent of 1/4th share in the property and the plaintiff has been held entitled to obtain partition from the Revenue Court and to obtain separate possession and Bhaiya lal, the defendant-appellant, has been declared to be the owner to the extent of 3/4th share. Cross objection has also been filed by the plaintiff/respondent challenging the factum of the will and it has been submitted that without getting probate of the Will it was not open to the defendant to take advantage of the same in the Civil Court.

( 2 ) THE plaintiff-respondent filed a suit for declaration of title and permanent injunction on the allegations that the plaintiff and defendant's father Pancha owned certain agricultural land comprising survey Nos. 165, 166, 167, 169,172,173,175, 240 and 304. The plaintiff was having half share in it. Pancha died ten days prior to filing of the suit. Defendant no. 1 and the plaintiff are the only

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