JUDGMENT R.P. Gupta, Member - 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 under Section 202 of U.P. Z.A and L.R. Act. 2. We have heard the arguments of the learned counsel for the parties at length on the point and have considered the various rulings cited by them on the point. 3. The learned counsel for the appellant contended that the notice determining the tenancy of the Asami is necessary before filing the suit under Section 202 of the Act without which the ejectment of Asami was not possible and the suit under Section 202 of U.P. Zamindari Abolition and Land Reforms Act will fail. 4. The contention of the learned counsel for the respondent is that no notice is required before filing the suit under Section 202 of U.P. Zamindari Abolition and Land Reforms Act. According to him no such notice is provided under the Act. He further contended that after determining tenancy of Asami by the notice. Asami will become trespasser and the suit for his ejectment would have to be filed under Section 209 of U.P. Z.A and L.R. Act and thus the provision of Section 202 of U.P. Z.A and L.R. Act for ejectment of Asami will become useless. 5. Under U.P. Z.A and L.R. Act there is no provision for a notice to the Asami by the land holder or Gaon Sabha determining his tenancy. No such notice is provided under U.P. Z.A and L.R. Rules also. Analogy of notice is drawn by the same law on the basis of Section 106 of the Transfer of Property Act. The Hon'ble Supreme Court considered the provisions of Section 106 of the Transfer of Property Act is a recent case namely V. Dhanapal Chettar v. Yesodai Ammal A.I.R. 1979. S.C. 1745. This case was decided by 7 Hon'ble Judges including the Hon'ble Chief Justice. At page 1748 their Lordship observed as follows:- "When under the various State Rent Acts either is one language or the other, it has been provided that a tenant can be evicted on the grounds mentioned in certain sections of the said Acts, then how does the question of determination of a tenancy be notice arise. At page 1748 their Lordship observed as follows:- "When under the various State Rent Acts either is one language or the other, it has been provided that a tenant can be evicted on the grounds mentioned in certain sections of the said Acts, then how does the question of determination of a tenancy be notice arise. If the State Rent Act requires the giving of a particular type of notice in order to get a particular kind of relief, such a notice will have to be given, Or, it may be, that a landlord will be well advised by way of abundant prosecution and in order to lead additional support to his case, to give a notice to his tenant intimating that he intended to file a suit against him for his eviction on the ground mentioned in the notice. But that is not to say that such a notice is compulsory of obligatory or that it must fulfil all the technical requirements of Section 106 of the Transfer of Property Act. Once the liability to be evicted is incurred by the tenant, he cannot turn round and say that the contractual lease has not been determined. The action of the landlord is instituting a suit for eviction on the ground mentioned in any State Rent Act will be tantamount to an expression of his intention that he does not want the tenant to continue as his lessor and the jural relationship of lessor and lessee will come to an end on the passing of an order or a decree for eviction. Until then under the extended definitions of the word 'tenant' under the various State Rent Acts, the tenant continues to be a tenant even though the contractual tenancy has been determined by giving of a valid notice under Section 106 of the Transfer of Property Act. 6. In this case hon'ble Supreme Court held that if the State Rent Act requires giving of a particular type of notice in order to get a particular kind of relief, such a notice will have to be given but that is not to say that such a notice is compulsory or obligatory. Once the liability to be evicted is incurred by the tenant he cannot turn round and say that the contractual lease has not been determined. Once the liability to be evicted is incurred by the tenant he cannot turn round and say that the contractual lease has not been determined. It was further observed that the action of the landlord in instituting the suit for eviction on the grounds mentioned in the State Rent Act will be tantamount to an expression of his intention that he does not want the tenant to continue as his lessee and the jural relationship of lessor and lessee will come to an end on the passing of an order of decree for eviction. It means that a tenancy is determined by the land holder by filing the suit itself. It is not obligatory for the land holder to give a notice determining the tenancy before filing the suit, if it is not specifically provided by the State Rent Law. Though this proposition of law was laid down by the Hon'ble Supreme Court while dealing with the case under transfer of Property Act regarding the tenancy of a house, but still these observations are applicable with full force in the present case also. 7. Section 190(2) of U.P. Z.A and L.R Act lays down that the provisions of sub-section (1) of Section 190 shall apply mutatis mutandis to Asamis also. Under Section 190(i) of the U.P. Z.A and L.R. Act seven conditions are given for the extinction of the interest but none of them provides that the interest of the Asami can be extinguished by notice. Section 190 U.P. Z.A and L.R. Act is as follows:- "190. Under Section 190(i) of the U.P. Z.A and L.R. Act seven conditions are given for the extinction of the interest but none of them provides that the interest of the Asami can be extinguished by notice. Section 190 U.P. Z.A and L.R. Act is as follows:- "190. Extinction of the interest of a Bhumidhar with non-transferable rights:- (1) Subject to the provisions of Section 172, the interest of a Bhumidhar with non-transferable rights in a holding or any part thereof shall be extinguished- (a) When he dies having no heir entitled to inherit in accordance with the provisions of this Act: (b) When the holding has been declared as abandoned in accordance with the provisions of Section 180; (c) When he surrenders his holding or part thereof; (cc) When the holding or part thereof has been transferred, let out or used in contravention of the provisions of this Act; (d) When the land comprised in the holding has been acquired and/or any law for the time being in force relating to the acquisition of land; (e) When he has been ejected in accordance with the provisions of his Act; or (f) When he has been deprived of possession and his right to recover possession is barred by limitation. (2) The provisions of sub-section (i) shall apply mutatis mutandis to Asamis also. 8. While under Rule 165 of U.P. Z.A and L.R. Rules the legislature has provided a notice by the Asami or Sirdar who surrender his holding or part thereof under the provisions of Section 185, 718, 47 Act, no such prior notice to the Asami is provided for the determination of his tenancy by the Gaon Sabha or the landholder. Had it been the intention of the legislature that prior notice should be given, it would have made such provision in the rules or the Act itself. Thus it is clear that no notice for determining the tenancy rights of the Asami is necessary before filing the suit under Section 202 of U.P. Z.A and L.R. Act. 9. Now let us examine the various ruling cited by the learned counsel for the parties. 10. In Zahid Ali Khan v. Saktey and others 1968 R.D. 367. Mr. Thus it is clear that no notice for determining the tenancy rights of the Asami is necessary before filing the suit under Section 202 of U.P. Z.A and L.R. Act. 9. Now let us examine the various ruling cited by the learned counsel for the parties. 10. In Zahid Ali Khan v. Saktey and others 1968 R.D. 367. Mr. Justice Lakshmi Prasad of Allahabad High Court held that a tenure which is held from year to year must first be determined by the landholder in order to be furnished with a cause of action for a suit for ejectment. By mere inaction, i.e., by not entering into a fresh agreement of tenancy on the expiry of any particular year, it cannot be said that the land holder gets cause of action as soon as the year expires. This ruling is overruled by division bench of Allahabad High Court in Smt. Vidhyawati Rathor v. Board of Revenue 1971 A.W.R. 894. and is no longer a good law. 11. In Smt. Vidhaywati Rathor v. Board of Revenue 1971 A.W.R. 894. a Division Bench of the Hob'ble Allahabad High Court while overruling the decision of Mr. Justice Laxmi Prasad in Zahid Ali Khan v. Saktey (supra) observed as follows:- "The main question that has been canvassed before us is whether a notice terminating Asami rights is necessary before the filing of a suit under Section 202. Lakshmi Prasad, J. has held that where the Asami is from year to year no occasion can arise for the landlord to file a suit unless the tenancy is determined by giving a notice and that without giving such a notice no cause of action to eject the tenancy can accrue to the landlord. We are unable to agree with the view taken by Lakshmi Prasad, J. Though under the Transfer of Property Act a notice under Section 106 is necessary to terminate the tenancy before a suit for eviction of a tenant can be filed, there is no-corresponding provision in the Z.A and L.R. Act. Section 117 of the Transfer of Property Act provides that none of the provisions of Chapter V, which includes Section 106, shall apply to leases for agricultural purposes except in so far as the State Government may declare. No such declaration appears to have been made. Section 117 of the Transfer of Property Act provides that none of the provisions of Chapter V, which includes Section 106, shall apply to leases for agricultural purposes except in so far as the State Government may declare. No such declaration appears to have been made. It is, therefore, clear that Section 106 or its principle cannot be applied to a suit under Section 202 of the Z.A. and L.R. Act. "It was further observed that "From the provisions of the Z.A. and L.R. Act itself it appears that it is not necessary to give a notice to the Asami before the landlord or can file a suit under Section 202, Section 190 lays down 'when the interest of Asami shall be extinguished'. It does not provide that the interest of an Asami can be extinguished by giving of a notice by the landholder. On the other hand, cl. (c) provides that the interest of an Asami shall be extinguished when he has been ejected in accordance with the provisions of this Act. An Asami can be ejected in accordance with the provisions of the Act only when a suit under Section 202 is decreed and in execution possession is taken of the land from the Asami. Till the time he is so evicted be continues to be an Asami, even though a decree may have been passed against him. It is, therefore, manifest that the giving of a notice cannot at all affect the rights of an Asami and cannot put an end to the Asami tenure. In our opinion it is not necessary for the land holder to given any notice to the Asami determining the Asami rights before a suit under Section 202 can be filed." 12. It was argued that in this division bench case of Smt. Vidhyawati Rathor v. Board of Revenue U.P. (supra) the previous Division Bench case of Ghazi v. Waqf Alalaulad 1969 A.W.R. 602 was not considered. In this case it was held that where the lease in favour of Asami is from year to year, and not for any fixed term, it cannot be said that the cause of action arises at the end of every year. A person holding the land year after year has a right to continue in possession till the lease is determined. A person holding the land year after year has a right to continue in possession till the lease is determined. For so long as there is no determination of the lease the lessee can remain in possession, and hence no cause of action can be deemed to have arisen for the ejectment of the person in possession. 13. In fact this Division Bench case of Ghasi v. Waqf Alalaulad (supra) was on the point of limitation where it was held that the period prescribed for a suit under Section 202 was originally one year from the date of accrual of the cause of action and when no cause of action had accrued, there was no occasion for instituting a suit hence the effect of Section 204, could not come into operation. In other words, an Asami, will remain an Asami and cannot by virtue of Section 204 become a Sirdar. It was not a case on the point whether prior notice determining the tenancy was necessary before filing the suit. It was also not considered that filing of the suit under Section 202 U.P. Z.A and L.R. Act itself amounted to the determination of tenancy. 14. In Aziz Alam and others v. Dy. Director of Consolidation U.P. 1972 R.D. 266 full bench of the Allahabad High Court consisting of 3 Judges held that where the sub-tenant held grove land for a fixed term and the term had expired before the date of vesting, time would run from the date of vesting under the first part of Col. No. 5. Where the sub-tenant held grove land for a fixed term and the term has expired after the date of vesting, time would run from the date on which the term expired after the date of vesting in accordance with the first part of Col. No. 5. But where the sub-tenant holds grove land from year to year, the cause of action will arise only when the landholder has determined the lease. In such a case time would run from the date on which the lease ceased to have effect. If no suit is instituted within limitation, the Asami would become a Sirdar. This case was also on the point of limitation and not on the point whether the prior notice determining the tenancy was necessary before the suit instituted under Section 202 of U.P. Z.A and L.R. Act. If no suit is instituted within limitation, the Asami would become a Sirdar. This case was also on the point of limitation and not on the point whether the prior notice determining the tenancy was necessary before the suit instituted under Section 202 of U.P. Z.A and L.R. Act. It was also not considered that the filing of the suit for ejectment amounts to determination of tenancy. 15. In Prem Singh v. Hukam Singh A.I.R. 1974 Alld. 50. Full Bench of Allahabad High Court consisting of 5 Judges observed as follows:- "The decision of the learned single Judge in Zahid Ali's case (supra) was considered by a Division Bench in Smt. Vidhyawati v. Board of Revenue 1972 R.D. 203. and was overruled. The Bench held that though under the Transfer of Property Act a notice under Section 106 was necessary to terminate a tenancy before a suit for eviction of a tenant was filed, there is no corresponding provision in the Zamindari Abolition Act. Section 190 of the Zamindari Abolition Act lays down when the interest of an Asami shall be extinguished. It does not provide that the interest of an Asami can be extinguished by giving of a notice by the land-holder. On the other hand, clause (e) provide that the interest of an Asami shall be extinguished when he is ejected under the provisions of this Act. Till he is evicted by executing a decree obtained in a suit filed under Section 202, he continues to be an Asami. It is, therefore, manifest that the giving of a notice cannot at all effect the rights of an Asami and cannot put an end to the Asami tenure. It was held that it was not necessary for the landholder to give any notice to the Asami determining his right before a suit under Section 202 can be filed. In this case the contrary Division Bench decision in Ghazi v. Waqf Alalaualad 1960 All. W.R. (H.C.) 602. was not noticed." The Bench further observed that 'It is true that the Zamindari Abolition Act does not specifically prescribe a notice prior to the institution of a suit for ejectment of an Asami. In this case the contrary Division Bench decision in Ghazi v. Waqf Alalaualad 1960 All. W.R. (H.C.) 602. was not noticed." The Bench further observed that 'It is true that the Zamindari Abolition Act does not specifically prescribe a notice prior to the institution of a suit for ejectment of an Asami. Section 184 of the Zamindari Abolition Act, however, provides that an Asami may surrender the whole of his holding by giving a notice in writing to the Land management Committee or the land-holder, as the case may be, intimating his intention to do so and by giving up possession thereof. Section 82 of the U.P. Tenancy Act, 1939, made a similar provision for surrender by tenants. From this a corresponding duty in the land-holder not to evict, without notice can be inferred on the line of reasoning that appealed to a Bench of the Calcutta High Court in Chaturi Singh v. Makund Lall (1881 I.L.R. 7 Cal. 710. Section 20 of the Bengal Act 8 of 1869 provided that Ryots cannot relinquish without a notice to the landlord. The Bench held: "In our opinion it follows from, this that a landlord cannot evict such a tenant without a notice; because, in order to justify an eviction without a notice, it must be held that the tenancy, unless renewed, comes to an end at the end of the year. But if that were so the Ryot could throw up the land without a notice. The relation of landlord and tenant cannot be said to have ceased so far as the landlord's right to evict is concerned, but not with reference to the Ryot's right to relinquish. But it seems to us, that the relationship does not come to an end at the expiration of each year, without some act on the part of the landlord and tenant jointly, or of either." 16. The point referred to this full Bench of 5 Judges was that (1) whether persons declared to be sub-tenants under the proviso to sub-section (3) of S. 27 of the U.P. Tenancy (Amendment) Act, 1974, held the land from year to year or for a fixed period within the meaning of Section 202(b) of the U.P. Z.A and L.R. Act? The point referred to this full Bench of 5 Judges was that (1) whether persons declared to be sub-tenants under the proviso to sub-section (3) of S. 27 of the U.P. Tenancy (Amendment) Act, 1974, held the land from year to year or for a fixed period within the meaning of Section 202(b) of the U.P. Z.A and L.R. Act? (2) whether the amendments introduced to Serial No. 25(2) of the trial appendix of U.P. Z.A and L.R. Rules by the notification dated November 16, 1954 were retrospective in operation ? The question whether a notice for determining the tenancy right of the Asami is necessary before filing of the suit under Section 202 of the U.P. Zamindari Abolition and Land Reforms Act was not referred to this Bench though the bench discussed this aspect of the case also. 17. In Gur Charan v. Ram Khelawan 1980 (6) A.L.R. 595. Mr. Justice R.M. Sahai of Allahabad High Court considered the binding effect of Prem Singh's case (supra) and held that 'on the basis of observations of this case it can legitimately be argued as has been done by learned counsel for opposite party that an Asami under Section 21(1)(c) holds land from year to and he is not liable to ejectment unless his tenancy is determined by land-holder. But this was not the question referred nor did the Full Bench record its opinion on it. The decision therefore on this aspect direct or by inference cannot be accepted as binding." Thus, it is clear that the observations of this full bench regarding notice was only obiter and not ratio. We are of the opinion that in view of the ruling of the Hon'ble Supreme Court, Dhanpal Chettar v. Yesodai Ammal 1975 R.D. 193. view expressed by the full bench of the point is obiter and not a good law. If there is a conflict between views of Hon'ble High court and Hon'ble Supreme Court the views of the Hon'ble Supreme Court will prevail. 18. The matter has come before the Board of Revenue also in several cases. 19. In Har Prasad v. Gaon Sabha 1975 R.D. 193. Sri S.S. Ahmed, Member, Board of Revenue held that it was mandatory for the Gaon Sabha to determine the lease before seeking the ejectment of appellants under Section 202 of the U.P. Zamindari Abolition and Land Reforms Act. 19. In Har Prasad v. Gaon Sabha 1975 R.D. 193. Sri S.S. Ahmed, Member, Board of Revenue held that it was mandatory for the Gaon Sabha to determine the lease before seeking the ejectment of appellants under Section 202 of the U.P. Zamindari Abolition and Land Reforms Act. In the absence of determination of lease proceedings under Section 202, for their ejectment, cannot be taken. 20. In Gaon Sabha v. Lal Singh 1976 R.D. 15. Sri N.B. Lal, Member, Board of Revenue held that no doubt it was mandatory for the Gaon Sabha to determine the lease before seeking the ejectment of the respondents under Section 202 of the U.P. Zamindari Abolition and Land Reforms Act. There being no limitation prescribed for ejectment of an Asami, it would be merely academic now to ask the Gaon Samaj to give a notice and file a fresh suit. The absence of a notice would be a mere technicality not effecting the merits of the case for ejectment of the respondents. 21. In Budha v. Madan Lal 1976 R.D. 336. Mr. G.S. Sial, Member, Board of Revenue held that a prior action in writing determining the lease is not a pre-condition for bringing a suit under Section 202 of the U.P. Zamindari Abolition and Land Reforms Act for the ejectment of the Asami. 22. In Ram Pratap v. Loknath and others 1977 R.D. 189. Mr. H.N. Agarwal, Member Board of Revenue, U.P. held that it is established that the rights of the defendant-respondent as an Asami could not be extinguished without a notice to this effect by the landholder, and since no such notice was given the suit under Section 209 could not succeed. 23. In Smt. Jhhaba v. Ram Dulare Mr. I.B. Singh, Member, Board of Revenue, held that a notice for determining rights of an Asami is a condition precedent to the filing of a suit for his ejectment by a land holder under Section 202 of Act I of 1951. 24. In all the cases, holding the contrary view, the question that a tenancy is determined by filing the suit itself was not considered. These case are no longer good law in view of the law laid down by the Supreme Court in V. Dhanapal Chettar v. Yesodai Ammal (supra). As already discussed above. 24. In all the cases, holding the contrary view, the question that a tenancy is determined by filing the suit itself was not considered. These case are no longer good law in view of the law laid down by the Supreme Court in V. Dhanapal Chettar v. Yesodai Ammal (supra). As already discussed above. We are of view that no notice for determining the tenancy rights of the Asami is necessary before the filing of the suit under Section 202 of U.P. Z.A and L.R. Act. 25. Let the record be put up before the Member dealing with the Second Appeal with above opinion of this Bench on the point referred.