1. An objection of non-joinder of a necessary party must be raised at the earliest opportunity, or it will be deemed to have been waived. 2. A suit does not abate if the name of a deceased defendant is expunged from the record within 90 days of his death. 3. A plea of ownership of property is barred by res judicata if the issue has already been decided in a previous suit between the parties. 4. In order to establish a right of easement, the claimant must lead evidence to show that he has 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.

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 plaintiffs 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 plaintiffs 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 plaintiffs 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