JUDGMENT
S. Anwar Ahmad, J.
1. This appeal by the defendant first party arises out of a suit filed against him and his father (defendant No. 1 who subsequently died) for removing the beams and rafters placed on the western wall of the plaintiff’s house within a reasonable time, and in the event of their failure to do so, for removal of the same through the process of Court at the cost of the defendants.
2. The case of the plaintiff was that he along with the defendants second party purchased a piece of land under a registered sale deed dated the 20th November, 1930, fully described in Schedule A of the plaint. The house of the defendant first party was adjacent west of the house of the plaintiff. In 1948, due to heavy flood, the western Wall of the plaintiff’s house fell down. A new wall was thereafter constructed by the plaintiff on the site of the old western wall. At the request of the defendant first party and his father, the plaintiff allowed them to place their beams and rafters on the newly constructed wall. Later on, the defendant first party and his father began to claim the said western wall of the plaintiff’s house as a common wall between them. A title suit (numbered 83 of 1954) was filed by the defendant first party and his father with the prayer that half of the western wall from west belonged to them. The suit was contested by the plaintiff (respondent first party in the present appeal). His plea was that the entire wall belonged to him. The said title suit was dismissed by the trial court on the 24th August, 1955, with the finding that the plaintiffs (the present appellant and his father) had acquired no right, title or interest in the disputed wall and that the defendant (plaintiff-respondent first party in the present appeal) was not liable to be restrained from making any construction upon the said western wall. This decision was affirmed by the 1st Additional Subordinate Judge, Monghyr, in Title Appeal No. 91/11 of 1955/1956. A second appeal (No. 813 of 1956) filed before this Court was also dismissed on the 24th August, 1956. The plaintiff (respondent first party in the present appeal) thereupon wanted to make constructions on the said wall and asked the defendant first party (the present appellant) and his father to remove the beams and rafters which had been placed on that wall with his permission, but the defendant first party and his father did not accede to this request of the plaintiff. Hence the suit giving rise to this appeal.
3. During the pendency of the suit defendant No. 1 Bansidhar Fogla (father of the present appellant-defendant first party) died on 30th September, 1962, and in pursuance of a petition filed by the plaintiff-respondent first party, his name was expunged on the 26th November, 1962, vide order No. 7 of the trial Court. On the 18th January, 1963, defendant No. 2 (defendant first party-appellant) appeared and prayed for time to file written statement, which was filed on the 18th February, 1963.
4. The defence put forward by the defendant first party-appellant in his written statement was that the wall in question was a common wall jointly owned, possessed and constructed by them (he and his father) and the plaintiff. The beams and rafters resting on the wall in question were there from a very long time exceeding 20 years and thus he had acquired the prescriptive right of easement and was not liable to remove the same. Issues were settled on the 22nd March, 1963. The suit was decreed ex parte on the 28th May, 1963, but on the application of the defendant first party, the ex parte decree was set aside and the suit was restored to file on the 17th July, 1963.
5. The hearing of the suit thereafter began on the 16th December, 1963. Almost towards the close of the case of the plaintiff-respondent a petition was filed on behalf of the defendant first party-appellant on the 19th December, 1963, stating that defendant No. 1 Bansidhar Fogla died leaving behind as heirs his son Lakhi Prasad Fogla (defendant first party-appellant), who was already on record as defendant No. 2, and his widow Shrimati Anandi Devi. They were in possession of the properties left by him and as the widow had not been substituted in his place, it should be held that the suit had abated. At this, the Court directed that the question of abatement should also be decided; and as no issue on the point had been framed earlier, in absence of any material, the original issues were recast, framing issue No. 5 with regard to abatement of the suit. It may be mentioned here that up to this stage no objection was taken, not even in the written statement, as shown earlier, as to the non-joinder of the widow who, according to the findings of the Courts below, is now the only other heir who is not on record, defendant No. 2 Lakhi Prasad Fogla (defendant first party-appellant) being already there.
6. In support of the appeal. Mr. Indra Bhanu Singh, Counsel for the appellant, has raised four points. His contentions are: (1) that the Courts below ought to have dismissed the suit of the plaintiff as the widow of defendant No. 1 Bansidhar Fogla was not made party to it; (2) that as no application was filed by the plaintiff to bring on record the widow of deceased defendant No. 1 within 90 days of his death, the suit abated as a whole; (3) that the Courts below erred in holding that the plea of the appellant Lakhi Prasad Fogla claiming ownership of the disputed wall was barred by res judicata and (4) that the finding arrived at by the Courts below on the point of easement was incorrect.
7. The plea of the appellant that the suit suffered from the defect of non-joinder of the widow of defendant No. 1 Bansidhar Fogla, as already stated, was not taken by him in the trial Court as provided for under Order 1, Rule 13, Code of Civil Procedure. All objections on the ground of non-joinder or mis-joinder of parties should be taken at the earliest opportunity or, at least, at the time of settlement of issues or before such settlement. In the instant case, as would appear from the preceding paragraphs, no objection on the ground of non-joinder of the widow was raised either at the time the issues were settled (in this case the issues were settled twice over) or even later. As a matter of fact, the appellant did not raise any objection on this score at any earlier stage. It has been raised for the first time before me in second appeal. In Jagdish Chandra Sinha v. Dr. Kameshwar Singh, AIR 1953 Pat 178 it was laid down by a Division Bench of this Court that “it is essential that where an objection is raised to the frame of the suit on account of defect of parties it should be done at the earliest possible opportunity and the names of persons omitted should be specifically mentioned so as to enable the other side to add those persons as parties to the suit if necessary. If this is not done, the objection would be deemed to have been waived, and the fundamental rule is that no suit shall be defeated by reason of the mis-joinder or non-joinder of the parties”. The other aspect of the question is that the appellant did not raise any objection on the score of abatement earlier than the 19th of December, 1963, when almost all the witnesses on behalf of the respondent were examined. By his conduct, he permitted the trial Court to carry on the suit on the understanding that the estate of the deceased (defendant No. 1 Bansidhar Fogla) was fully represented by his son defendant No. 2 Lakhi Prasad Fogla. If as a consequence of the death of defendant No. 1 Bansidhar Fogla, the appellant was of the view that the estate of Bansidhar was not fully represented by him, and in order to secure full representation it was necessary to bring on record his widow, he could and ought to have intimated this to the Court. This not having been done amounts to putting a premium on fraud to hold that he was entitled to conceal certain facts from the Court and then, on the basis of those facts, to assert abatement of the appeal as necessary parties were not before the Court (see Balgajan Rai v. Sukhu Rai, AIR 1948 Pat 288). For the reasons stated above, there is no force in the first submission of learned Counsel.
8. It was next urged that as on the death of Bansidhar (defendant No. 1) his widow who, on the findings of the Courts below, is admittedly an heir and has not been substituted, the suit abated as a whole. Counsel for the appellant cited a large number of decisions to the effect that since after the passing of the Hindu Women’s Rights to Property Act, a widow is a necessary party to a partition suit. Her presence became all the more essential on account of the Hindu Succession Act, 1956, where she has been classified as Class I heir. But for the fact that the name of Bansidhar Fogla (defendant No. 1) was expunged by the Court on 26-11-1962 on the application of the plaintiff-respondent, I think, the appellant was bound to succeed, but, as already stated, within the period allowed by the law of limitation — before abatement could set in; the name of Bansidhar was expunged within 90 days from the date of his death and, therefore, the suit could not abate. On the date when the suit could be said to have abated, Bansidhar was not a party to it as his name had been ex-pugned much earlier. Once his name was expunged, the only person who remained party to the suit was Lakhi Prasad Fogla (defendant No. 2) who is alive up to this day. See the decision in Radhamohan v. Shreekrishun, ILR 27 Pat 242 = (AIR 1948 Pat 460). This decision was approved by a Full Bench of this Court in First Appeal No. 396 of 1959 on 23-9-1968 (Pat). On account of the conflict between the decisions in Ramphal Sahu v. Babu Satdeo Jha, ILR 19 Pat 870 = (AIR 1940 Pat 346) (FB) and Radhamohan v. Shreekrishun, ILR 27 Pat 242 = (AIR 1948 Pat 460), referred to above, the Division Bench of this Court hearing the said first appeal framed the following questions for consideration by a larger Bench:
“(1) Where one of the plaintiffs died leaving two sons, who were already on the record, and a widow, who was not on the record, and, within the period of limitation for substitution, an application was made by the remaining plaintiffs to expunge the name of the deceased plaintiff with a statement in that application that the sons of the deceased were already on record as plaintifs 4 and 5 and no application for substitution of the widow was made, whether the suit will abate?
(2) Whether the case of ILR 27 Pat 242 = (ATR 1948 Pat 460) has been correctly decided?”
The answer given by the Full Bench was as follows:
“(1) The answer to the first question is in the negative, i.e., in the circumstances set out in question No. 1, the suit shall not abate.
(2) The answer to question No. 2, i.e., whether Radhamohan’s case ILR 27 Pat 242 = (AIR 1948 Pat 460) was correctly decided, is in the affirmative, i.e., the case was correctly decided.”
The aforesaid decisions are binding on me and it has to be held there is no substance in the submission of Counsel that the suit abated on account of the widow of deceased defendant No. 1 Bansidhar Fogla not having been substituted in his place.
9. So far as the question of res judicata is concerned. Title suit No. 83 of 1954, giving rise to Second Appeal No. 813 of 1956, was filed by the deceased Bansidhar Fogta (original defendant No. 1 in the suit giving rise to this appeal) and his son Lakhi Prasad Fogla (the present appellant) against the plaintiff-respondent to this appeal, claiming that the western wall in dispute belonged to them. This claim of the plaintiffs was negatived by the learned Munsif and it was held that they had no right, title or interest in the said wall. The judgment of the learned Munsif was upheld by the lower appellate court and the second appeal to this Court was dismissed in limine. Therefore, the case of the appellant in so far as it relates to title in the wall has already been adjudicated upon and he cannot be allowed to re-agitate the matter. The plea is barred by the principles of res judicata.
10. Counsel for the appellant submitted that as the plea of easement could not have been pleaded in the earlier suit in view of the claim made by Bansidhar and his son, this plea is not barred either by Explanation IV to Section 11 or Order 2, Rule 2, Code of Civil Procedure. Without going into the matter as to whether the plea can be said to be barred by either Explanation IV to Section 11 or Order 2, Rule 2, I permitted learned Counsel to place the relevant evidence on the points. As it appears, the evidence on behalf of the defendant does not fulfil the requirement of Section 26 of the Indian Limitation Act. In order to succeed on the ground of easement, the appellant had to lead evidence on the point that they enjoyed the right peaceably and openly as an easement and as of right without interruption, and for twenty years, ending within two years next before the institution of the suit. This has not been done. The learned Munsif while deciding this point held that the evidence adduced on behalf of the defendant suffered from material contradictions and that he had failed to prove his right of easement as claimed by him. There is no substance in this submission of learned Counsel, as well.
11. There is no merit in this appeal. It is accordingly dismissed with costs.