Judgment SATYESHWAR ROY., J. 1. The petitioner filed an application before respondent No. 1 under Sec. 48E of the Bihar Tenancy Act, 1885 (the Act) in which he, inter alia, stated that he was an under-raiyat within the meaning of the Act in respect of the land in dispute and he was being threatened with ejectment by the landlords. Prayer was made to restrain original respondents Nos. 2 and 3 to interfere with possession of the petitioner as under-raiyat. That application was registered as Bataidari Case No. 1 of 1982-83. Original respondents Nos. 2 and 3 died during the pendency of this writ petition and their legal representatives were substituted. Respondent No. 1 by the order as contained in annexure 1 dismissed that application. This has been challenged in this writ petition. 2. The learned single Judge before whom the writ petition was listed for hearing ordered that the case be listed before a Division Bench for hearing. The Division Bench formulated two questions of law involved in this writ petition and ordered that it be heard by a larger Bench. The case, therefore, has been listed before this Bench for hearing. 3. The questions of law formulated by the Division Bench were : "(1) Whether in view of Sec. 1(3) of the Bihar Tenancy Act, the provisions of Sec. 48E of the said Act will be applicable to the lands lying within a municipality constituted under the Bihar and Orissa Municipal Act, 1922. (2) Whether any other notification by the Government is required to be issued for excluding the applicability of the provisions of the Bihar Tenancy Act to the lands which lie within the municipal area under the aforesaid Sec. 1 (3) of the Act. " 4. The relevant section of the Act is Sec. 1 (3), as stood at the relevant time, read as follows: - "It shall extend to the district of Patna, Gaya, Shahabad, Muzaffarpur, Saran, Champaran, Darbhanga, Bhagalpur, Monghyr and Purnea, except any area constituted, or deemed to have been constituted, a municipality under the provisions of Bihar and Orissa Municipal Act, 1922, or part thereof, if such area is specified in a notification issued in this behalf by the State Government. " 5. " 5. The question as to whether the area lying within the limit of municipality will automatically be excluded from operation of the Act or whether a notification excluding applicability of the Act is required to be issued was considered in various cases by learned single Judges. There was conflict of opinion. The Division Bench judgment on this point was delivered in Shrikishun Lal V/s. Harihar Sah, AIR 1949 Patna 444. It was held that a notification must be issued for excluding the area within the municipal limits from operation of the Act. The question came up for consideration again before a Full Bench in Haridayal Narain Singh V/s. Md. Shariff, AIR 1968 Patna 296. The Full Bench approved the law laid down by the Division Bench in Shrikishun Lal (supra) and held that there must be an express notification excluding the municipal area from operation of the Act. The questions formulated by the Division Bench in this case, which I have noticed above, are fully answered by the law laid down by the Full Bench in Hridya Narain Singh (supra). 6. It is not the case of any of the parties that notification has been issued excluding the area lying within the limit of Bhagalpur municipality from operation of the Act. It must, therefore, be held that the Act applies to the area within the limits of Bhagalpur municipality. The order of dismissal of application filed by the petitioner before respondent No. 1 on the ground that as the land was situate within the limit of Bhagalpur municipality, it was not maintainable cannot be sustained. 7. During the course of hearing of this case, on behalf of the petitioner it was submitted that if it was held that the Act applied to the area lying within the limits of Bhagalpur municipality, the order passed by respondent No. 1 on 24-8-1982 be set aside and the matter be remanded to respondent No. 1. It was urged that the petitioner had filed an application for adjournment of the case on 23-8-1982, the date fixed for hearing. The respondent No. 1 had rejected the prayer for adjournment. The case was, thereafter, called out for hearing and respondent No. 1 proceeded ex parte, although petitioner was not present. On the basis of these facts, it was submitted that respondent No. 1 could not have recorded any finding on merit. The respondent No. 1 had rejected the prayer for adjournment. The case was, thereafter, called out for hearing and respondent No. 1 proceeded ex parte, although petitioner was not present. On the basis of these facts, it was submitted that respondent No. 1 could not have recorded any finding on merit. On behalf, of the respondents, it was submitted that respondent No. 1 has held that there was no dispute which was required to be decided in Bhataidari case. There was no necessity of remanding the matter to respondent No. 1. 8. Whole of the order sheet of Bataidari case No. 1 of 1982-83 is annexure 1 to the writ petition. In the circumstances of this case and for the reasons hereinafter recorded, I am of the opinion that it is not necessary to go into the question as to whether respondent No. 1 had jurisdiction to proceed ex parte on merit in absence of the petitioner. 9. The petitioner has described in his application under Sec. 48E of the Act the lands in dispute with reference to holding No. of Bhagalpur Municipality. Sec. 48E is for prevention of threatened ejectment of under raiyat by landlord from his tenancy and restoration of possession of under-raiyat unlawfully ejected. Landlord has been defined in Sec. 3(4) of the Act to mean a person immediately under whom a tenant holds and includes a Government. Under Sec. 3(9) holding means a parcel or parcels of land held by a raiyat and forming the subject of a separate tenancy. Sec. 4 enumerates classes of tenants which include raiyat and under-raiyat. Under-raiyat is a tenant holding immediately or immediately under a raiyat. Sec. 5, inter alia, provides what is meant by raiyat. Chapter X of the Act deals with preparation of record of rights and settlement of rent. Sec. 102 of Chapter X provides the particulars to be recorded in the record of rights. Besides other particulars, the record of rights must specify the class to which each tenant belongs, that is to say, whether he is a tenure-holder, raiyat, or under-raiyat. 10. The Act is applicable to agricultural holdings only. Existence of under-raiyat presupposes existence of a raiyat and a holding held by the raiyat. There cannot be a raiyat if there is no holding within the meaning of the Act and consequently there cannot be under-raiyat. 10. The Act is applicable to agricultural holdings only. Existence of under-raiyat presupposes existence of a raiyat and a holding held by the raiyat. There cannot be a raiyat if there is no holding within the meaning of the Act and consequently there cannot be under-raiyat. The facts which a person in an application under Sec. 48E must plead are existence of a holding and of an under-raiyat, both within the meaning of the Act. Raiyat is landlord in relation to his under-raiyat. 11. Neither in the application filed by the petitioner as contained in annexure 3, nor in whole of the writ petition, there is any averment that the petitioner was under-raiyat within the meaning of the Act. He did not describe the holdings as meant under the Act in respect of which he apprehended his ejectment. He did not bring on record the record of rights to prima facie show that the original respondents Nos. 2 and 3 were his landlords, being raiyats recorded in a particular holding and the land in question was the subject matter of that holding. In absence of these facts, the applications under Sec. 48E of the Act was not entertainable. 12. If basic facts are absent in an application filed under Sec. 48E, there is no question of the Collector applying his mind whether there is a dispute between the landlord and the under-raiyat. It appears that so far this case is concerned, respondent No. 1 did not proceed to dispose of the matter keeping in view the correct legal position. The parties also were not aware of the correct legal position. I am of the opinion that for the ends of justice, the matter should go back to the respondent No. 1. 13. For the reasons aforesaid, this application is allowed, annexure 1 is quashed and the matter is remitted back to respondent No. 1. He shall give an opportunity to the petitioner to file an application to state the necessary facts and give in opportunity to the respondents to file their rejoinder. Respondent No. 1 thereafter shall proceed to dispose of the case in accordance with law. 14. AGRAWAL, J. :- I agree. 15 PANDEY, J.:- I agree. Application allowed.