Gyan Chand Mathur, J. - (1.) This writ petition has been referred for decision to a Division Bench as one of us doubted the correctness of the decision of Lakshmi Prasad, J. in Zahid Ali Khan v/s. Saktey ( : 1968 AWR 348). The writ petition arises out of a suit filed by the petitioner u/S. 202 of the UP ZA and LR Act for the eviction of respondent No. 2 Bhopal Singh from certain lands. The petitioner claimed to be Bhumidhar of these lands and asserted that Bhopal Singh was an Asami thereof. A number of pleas were raised in defence by Bhopal Singh and seven issues were framed by the trial court including the issues: whether the plaintiff was a Bhumidhar of the land in suit; whether the plaintiff was a disabled person; whether the defendant was an Asami and whether the defendant was a Sirdar. The trial court decided all these issues and ultimately decreed the suit for eviction. It held that the defendant was neither an Adhivasi nor a Sirdar of the land in dispute. Against the judgment and decree of the trial court Bhopal Singh preferred an appeal. The appeal was dismissed by the Additional Commissioner. Thereupon Bhopal Singh filed a second appeal before the Board of Revenue. The Board of Revenue repelled all the contentions raised by Bhopal Singh except one. Following the decision of Lakshmi Prasad, J. referred to above the Board held that since no notice terminating the Asami rights had been given by the plaintiff to the contesting defendant the suit for eviction u/S. 202 was incompetent. It is only on this ground that the Board allowed the second appeal and dismissed the suit filed by the petitioner.
(2.) The main question that has been canvassed before us is whether a notice terminating Asami rights is necessary before the filing of a suit u/S. 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 tenant 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 u/S. 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 ZA and LR Act. S. 117 of the Transfer of Property Act provides that none of the provisions of Ch. V, which includes S. 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 S. 106 or its principle cannot be applied to a suit u/S. 202 of the ZA and LR Act.
(3.) From the provisions of the ZA and LR Act itself it appears that it is not necessary to give a notice to the Asami before the landholder can file a suit u/S. 202. S. 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 u/S. 202 is decreed and in execution possession is taken of the land from the Asami. Till the time he is so evicted, he 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 give any notice to the Asami determining the Asami rights before a suit u/S. 202 can be filed. In this view the decision of the Board of Revenue that the suit filed by the petitioner was incompetent is manifestly erroneous.;