(1.) THE present revision application is directed against the order dated 28/2/2005 passed by learned Sub-Judge 6th, Patna in Title Partition Suit No. 262 of 2003 rejecting the petition dated 12/1/2005 filed by defendant Nos. 3 and 4 (Petitioners here). THE petitioners filed an application before the trial Court for staying the proceedings in the Title Partition Suit till the decision of Test Suit No. 2 of 2004. This has been rejected giving rise to the present revision application.
(2.) THE facts of this case are that one Akshaybat Mishra and his wife Laganmani Kuer had only one issue i.e. daughter Madalsa Devi. Madalsa Devi had three sons namely, Nawal Kishore Mishra (since dead), Nandkishore Mishra (defendant No. 2) and Braj Kishore Mishra (Plaintiff-opposite party). THE said Nawal Kishore Mishra died leaving behind three sons who are defendant Nos. 2, 3 and 4 in the said suit. It is alleged that Akshaybat Mishra was the absolute owner of the property which is the subject-matter of dispute and he had executed a Will allegedly along with his wife by which after the death of his wife the property was to devolve upon Nawal Kishore Mishra and thereafter to his heirs. It is alleged that the said Will was executed in the year 1936. THE dispute presently as would appear is between the two branches of the grandson of the said Akshaybat Mishra. THE dispute is between two "Natis". THE Partition Suit No. 262 of 2003 was filed claiming that the property of Akshaybat Mishra should be devolved by way of inter se succession to his heirs. Soon after the said Title Suit was filed in the year 2003, a Probate case was filed before this Court under its original jurisdiction for grant of Letter of Administration on the basis of the Will of the said Akshaybat Mishra executed in 1926 (sic) while two proceedings were going on pursuant to Caveat filed in the probate proceedings before this Court. THE probate case i.e. Testamentary Suit No. 6/93 was converted into Testamentary Suit No. 2 of 2004. In the Testamentary Suit an application was filed by the plaintiff of the Title Suit for staying the proceedings which was rightly rejected by order dated 12/1/2005 passed in Test Case No. 2/2004 held that the matter in the two proceedings are different. THEn the present application was filed by the defendant in Title Suit for staying the title suit on the ground of pendency of Testamentary Suit. THE same has come to be rejected which is order impugned.