JUDGMENT I.B. Singh, Member. - This is plaintiff's second appeal against the Judgment and decree dated November 11, 1974 dismissing the Appeal No. 17\79 of 1972, district Hamirpur, against the Judgment and decree dated October 23, 1972 passed by S.D.O. Mahoba, District Hamirpur, dismissing plaintiff's suit under Section 229-B of Act I of 1951. 2. Guman had filed a suit under Section 229-B of Act I of 1951 on June 22, 1972 regarding disputed plots claiming to be in possession since prior to the date of vesting and as he was agricultural labourer, the L.M.C. had granted lease under Section 198(2) of Act I of 1951 which was cancelled by the S.D.O., hence the suit for declaration of his rights. 3. The suit of the plaintiff was not contested by the Gaon Sabha in the lower court. The suit was dismissed and the appeal was dismissed on the preliminary ground that no notice under Section 106 of the U.P. Panchayat Raj Act was given to the Gaon Sabha and there was no averment even to this effect and it was held that the suit as well as appeal was not maintainable. 4. I have heard the learned counsel for the parties and have perused the record. 5. It has been argued by the learned counsel for the appellant that notice under Section 106, U.P. Panchayat Raj Act is not required to the Gaon Sabha as has been held in Noor Khan v. Ali Khan, 1973 A.W.R. 47 and Sheopujan v. Gaon Sabha, 1964 R.D. 157. It has been further argued that even if a notice was required to the Gaon Sabha the plea of want of that notice will be deemed to have been waived by the Gaon Sabha as it did not contest the suit. Reliance has been placed on Gaya and others v. Dassa Koeri, A.I.R. 1964 Alld. 471. 6. In reply, the learned D.G.C. (R) Jhansi has argued that notice under Section 106 of the U.P. Panchayat Raj Act to the Gaon Sabha is mandatory per Section 28-B of U.P. Panchayat Raj Act. This notice is mandatory when the suit is directed against the Gaon Sabha and the fact of giving notice must be averred in the plaint. If it is not done so it cuts to the very root of the said plaint and is liable to be rejected. This notice is mandatory when the suit is directed against the Gaon Sabha and the fact of giving notice must be averred in the plaint. If it is not done so it cuts to the very root of the said plaint and is liable to be rejected. Reliance has been placed on Sunder Lal v. Ram Prakash, 1973 A.W.R. (R) 9, Devi Singh v. Smt. Sugani, 1972 A.W.R. (R) 44, State of U.P. v. Sukha, 1964 R.D. 12 and Khacheru v. Hansraj, 1978 A.W.C. (R) 36. 7. The correct legal position is that when the Act complained of is that when the act complained of is directly against the Gaon Sagha then a notice under Section 106 is mandatory and want of notice, want of its averment in the plaint cuts of the very root of the suit and such suit is not maintainable and the plaint is liable to be rejected. But, if Gaon Sabha is made a party to fulfil the requirement of law only and the suit is not directed against if and is directed against other parties then want of notice under Section 106 of the U.P. Panchayat Raj Act is not fatal and does not make the suit defective in any way. The view expressed by my learned brother Member Sri S.K. Sarkar in 1973 A.W.R. (R) 9 and 1972 A.W.R. (R) 44 in cases decided by him earlier were not rightly followed by him in his latest decision reported in 1973 A.W.R. (R) page 47 which is in conformity with the view expressed by the Hon'ble High Court in 1964 R.D. page 157, therefore, they are no longer good law. In the present case as the suit was directly against the Gaon Sabha, notice under Section 106 of the U.P. Panchayat Raj Act was mandatory and an averment about it in the plaint was also essential which is wanting. Therefore, as held in 1978 A.W.C. (R) page 36, want of notice under Section 106 and want of its averment in the plaint cuts the very root of the suit and the plaint is liable to be rejected. 8. Now the question for determination is whether the Gaon Sabha will be deemed to have waived want of notice under Section 106 of the U.P. Panchayat Raj Act. 8. Now the question for determination is whether the Gaon Sabha will be deemed to have waived want of notice under Section 106 of the U.P. Panchayat Raj Act. The Privy Council in Villayan Chattier v. Government of Province of Madras, A.I.R. 1947 (P.C.) 197 laid down that 'there is no inconsistency between the proposition that the provisions of the section are mandatory and must be enforced by the court and that they may be waived by the authority for whose benefit they are provided. 9. In A.I.R. 1964 (Alld.) page 471 it was laid down that "if the State Government could be said to have waived its objection regarding want of notice by not taking a plea to that effect in written statement filed by it, it can be said with equal reason that the State Government waived it by filing no written statement at all". 10. The said observations were made in that case. There was no contest on behalf of State Government and even in appeal before Hon'ble High Court. The present case is different. The plea was taken on behalf of the State and Gaon Sabha represented by the Government counsel in first appeal. Therefore it cannot be reasonably said that Gaon Sabha waived this plea. In the case reported in A.I.R. 1964 (Alld.) page 471, the plea was taken by a third person and not by the State Government therefore, it was held that the plea was not available to third person. In the present case the plea was raised on behalf of the Gaon Sabha itself, hence it cannot be held that this plea was waived by the Gaon Sabha. In view of the above in my considered opinion as the present suit was directly against the Gaon Sabha want of notice and want of averment in the plaint about it is fatal and goes to the very root of the suit and for their want the suit was not maintainable and first appeal was rightly dismissed but it would have been proper for the first appellate court to reject the plaint instead of dismissing the suit. 11. Therefore this appeal has got no force and is liable to be dismissed. 12. In view of the above this appeal is dismissed with costs. 11. Therefore this appeal has got no force and is liable to be dismissed. 12. In view of the above this appeal is dismissed with costs. The Judgment and decree of the first appellate court is hereby confirmed with the modification that the suit is not dismissed but the plaint is rejected.