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. 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 since it has not considered the decision given by a Division Bench in Ghazi (supra) , therefore, only on a ground as to whether notice was mandatory or not was not directly in consideration in Prem Singh (supra) , without appreciating that said issue was referred and considered. 18. 18. The Board of Revenue cannot held that it was not bound by the said judgment. For reference, relevant paras being 29,30 and 31 of Prem Singh (supra) are reproduced hereinafter: "29. The decision of the learned single Judge in Zahid Ali's [ 1968 R.D. 367 .] case was considered by a Division Bench in Smt. Vidyawati v. Board of Revenue [ ???] and was over-ruled. The Bench held that though under the Transfer of Property Act a notice under Sec. 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. Sec. 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) provides 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 Sec. 202, he continues to be an asami. 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. It was held that it was not necessary for the land-holder to give any notice to the asami determining his right before a suit under Sec. 202 can be filed. In this case the contrary Division Bench decision in Ghazi v. Waqf Alalaulad [ ???] was not noticed. 30. 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. Sec. 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. Sec. 82 of the U.P. Tenancy Act, 1939, made a similar provision for surrender by tenants. Sec. 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 p. Makund Lall [I.L.R. 7 Cal. 710.] . Sec. 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." 31. This controversy was set at rest by a Full Bench of this Court in Aziz Alarh v. Deputy Director of Consolidation [1972 R.D. 266.] . S.N. Dwivedi, J. referring to-entry 25(ii) of appendix III, held that where the sub-tenant holds 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 day on which the lease ceases to have effect. If no suit is instituted within limitation, the asami would become a sirdar. Thus a suit for the ejectment of an asami holding from, year to year will not become barred by time on 1st July, 1954, unless the land-holder has determined the tenancy more than one year prior to that date." 19. If no suit is instituted within limitation, the asami would become a sirdar. Thus a suit for the ejectment of an asami holding from, year to year will not become barred by time on 1st July, 1954, unless the land-holder has determined the tenancy more than one year prior to that date." 19. In the aforesaid circumstances, the reference was not correctly decided and since there is a judgment of Five Judges' of this Court in Prem Singh (supra) that a person holding land year after year has a right to continue in possession till the lease is determined, therefore, so long as there is no issue of lease, lessee can remain in possession and no cause of action could be determined to have arisen for ejectment of the person, the Board of Revenue was bound to follow it. The appeal was also contrary to the Rule of judicial discipline and propriety. (See Mary Pushpam Vs. Telvi Curusumary & Ors, (2024) 3 SCC 224 ) . 20. Accordingly, I am of considered opinion that in order to institute a suit, under Section 202 -B of the 'Act of 1950' a notice is required to be issued to the defendant to determine the lease and admittedly in the present case, no such notice was issued. 21. Order of reference is accordingly set-aside and matter is remanded to decide the Second Appeal afresh on the basis of aforesaid observations. 22. With aforesaid observations/direction, this writ petition is disposed of.