Notice is mandatory before ejectment of an Asami under Section 202-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950.

JUDGMENT :

Saurabh Shyam Shamshery, J.

1. Heard Sri Mithilesh Kumar Pandey, Advocate holding brief of Mr. Arvind Kumar Shukla, learned counsel for petitioners and Sri Ashok Kumar Dwivedi, Advocate holding brief of Sri Himanshu Pandey, learned counsel for contesting respondents.

2. This case is arising out of a suit filed by the original respondents/plaintiff in respect of land in dispute for ejectment of defendants/original petitioners herein under Section 202 -B of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter called the "Act, of 1950")

3. In the suit following issues were framed:

4. Aforesaid suit was decreed and defendants/original petitioners were directed to be evicted. The defendants thereafter filed an appeal before the Commissioner which was dismissed.

5. A question was raised therein on the maintainability of suit that no prior notice was given before institution of suit however it was rejected.

6. In the aforesaid circumstances, petitioners filed a Second Appeal before Board of Revenue wherein a question was referred for consideration before the bench. The question referred is as follows: "1. The question referred to this Bench for opinion is whether notice for determining the tenancy right of the Asami is necessary or not before filing the suit u/s 202 of U.P.Z.A & L.R. Act."

7. A Bench of Board of Revenue answered the above referred issue in the following manner and directed the Second Appeal to be heard on merit.

"We are of the view that no notice for determining the tenancy rights of the Asami is necessary before the filing of the suit U/s 202 of U.P.Z.A & L.R. Act."

8. In the aforesaid circumstances, order passed on reference is challenged before this Court by the petitioners (original defendants).

9. This writ petition is pending for last more than four decades.

10. Learned counsel for the petitioners submitted that prior notice was mandatory and since admittedly no notice was issued, therefore suit was not maintainable. He made reference of following judgments which are as under:

"1-Prem Singh Vs. Hukum Singh, 1974 AIR (ALL) 50

2- Gur Charan Vs. Ram Khilawan, 1980 (6) ALL LR 595

3- Aziz Alam & Ors. Vs. Dy. Director of Consolidation & Ors. Laws (ALL) 1971 (4) 39

4- Zahid Ali Khan & Ors. Vs. Saktey & Ors.

5- Smt. Vidyawat Rathore Vs. B.O.R. & Ors."

11. Per contra, learned counsel appearing on behalf of respondents/plaintiffs supported the impugned order that prior notice was not the mandatory requirement.

12. This issue was dealt by this Court when a reference was made to Division Bench wherein the question was as to whether a notice terminating Asami right is necessary before filing of suit under Section 202 of the 'Act, of 1950'.

13. Said reference was decided by this Court in the case of Smt. Vidyawati Rathore Vs. Board of Revenue & Ors, 1971 SCC OnLine All 260, wherein the reference was answered in following terms: "It is therefore, manifest that giving of a notice cannot at all affect the rights of Asami and cannot put an end to the Asami tenure. In our opinion, it is not necessary for the land holder to give any notice to the Asami determining the Asami right before a suit under Section 202 of the 'Act of 1950' can be filed.

14.Larger Bench of this Court in a case of Prem Singh & Ors Vs. Hukam Singh & Ors1973 SCC OnLine All 360 has referred Smt. Vidyawati Rathore (supra) and doubted that an earlier judgment in Ghazi Vs. Waqf Allahabad1969 SCC OnLine All 143 was not noticed.

15. In Reference, the Board of Revenue has noted above judgment, however, followed Smt. Vidyawati Rathore (supra) and other judgments passed earlier by Board of Revenue on the issue and distinguished Prem Singh (supra). Finally it was held that no prior notice was mandatory.

16. Court is of considered opinion that approach of Board of Revenue was incorrect.

17. A Five Judges' Bench of this Court in Prem Singh (supra) has specifically held that judgments passed by Division Bench in Smt. Vidyawati Rathore (supra) was not correct si