1. This writ petition is directed against an order dt/- 7-12-1981, passed by the respondent 2 and as contained in Annexure-2 to the writ petition, whereby and whereunder the respondent 2 rejected an application filed on behalf of the petitioners purported to be under S.48E of the Bihar Tenancy Act.

2. The facts of the case lie in a very narrow compass.

3. On 3-9-1981 the petitioners filed an application under S.48E of the Bihar Tenancy Act before the respondent 2 claiming themselves to be the bataidars in respect of the lands described in para 4 of the writ. petition inter alia on the ground that they are cultivating the said lands on batai for the last 30-40 years, but they have been threatened by the landlord with unlawful ejectments from the said lands.

4. Upon the aforementioned application the respondent 3 was issued notice and he filed an application on 7-9-1981 challenging the maintainability of the said application alia on the ground that he has got 28 acres, 72 decimals of land and the said lands had been partitioned by a compromise decree passed in Title Suit No. 121 of 1970 between and three sons in equal share resulting in allotment of 1/4th share in his favour out of 28 acres. 72 decimals of lands.

5. As the hearing of the case had been concluded, the respondent 2 fixed 28-9-1981 for orders. On 26-9-1981 a joint compromise petition was filed by the petitioners and the respondent 3. The parties prayed before the respondent 2 that the said case be disposed of in terms of the compromise, but no order was passed thereon. However, on 1-10-1981, the respondent 3 filed another petition before the respondent 2, whereby and whereunder, he stated that the question as to whether he being a protected tenant should be decided first and pursuant thereto the respondent 2 by his order dt-22-10-1981 called for a report from the Anchal Adhikari of Shahkund Block. On 19-11-1981, a report was submitted and as contained in Annexure-1 to the writ petition, wherein the Anchal Adhikari reported that the respondent 3 had less than 10 acres of lands.

6. By the impugned order, the learned court below declared the respondent 3 to be a protected tenant as contemplated under S.48C of the Act and thus, rejected the application filed by the petitioners under S.48E thereof.

7. The petitioners, thereafter, filed an application for review before the respondent 2, who by an order dt/- 31-3-1982 rejected the said application.

8. The learned counsel appearing on behalf of the petitioners submitted that the impugned order passed by the respondent 2 is wholly illegal and without jurisdiction inasmuch as S.48C does not bar an application filed under S.48E of the Act. Sec. 48C and S.48E read as follows :-

"48C. Acquisition of right of occupancy by under-raiyats :-

Every person who, for a period of twelve years, whether wholly or partly before or after the commencement of the Bihar Tenancy (Amendment) Act, 1938 (Bihar Act 11 of 1938), has continuously held land as an under-raiyat in any village whether under a lease or otherwise, shall be deemed to have acquired, on the expiration of that period, a right of occupancy in the land which he has so held for the said period; Provided that an under-raiyat shall not, irrespective of the duration of his holding any land as an under-raiyat, acquire any right of occupancy - (i) in such area of the land to be selected and declared by his landlord in the prescribed manner as together with the area of land already held by the landlord under his cultivation does not exceed the following limits, namely :- (a) five acres of land irrigated by flow irrigation work, lift irrigation work or tube well owned, constructed maintained improved or controlled by the Central or the State Government or by a body corporate constituted under any law or by tube well owned or maintained by the landlord or;

(b) ten acres of other land;

(ii) in the land within the ceiling area fixed by law of a landlord who is a widow or a person su