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11. Section 89 of t he Bihar Tenancy Act provides that no tenant shall be ejected from his tenancy or any portion thereof except in execution of a decree.

12. Section 48E of the Act does not contemplate an application, only by an under-raiyat having an occupancy right.

13. Chapter V of the Act deals with the matters relating to the incidence of occupancy right. Such rights have been created for conferring certain benefits as mentioned in the various provisions as contained in Sections 23 to 26B thereof upon the raiyats.

14. In terms of Sections 25 of the Act, an occupancy raiyat shall not be ejected by his landlord from his holding except in execution of a decree for ejectment passed on the grounds mentioned therein. Chapter VI of the said Act deals with the rights of non-occupancy raiyat.

15. In terms of Sections 44 of the said Act, a non-occupancy raiyat shall be liable to ejectment on the grounds mentioned therein.

16. From a comparison of Sections 25 and 44 of the Bihar Tenancy Act, it is evident that a non-occupancy raiyat can be ejected only on the ground that he has used the land in a manner which renders it unfit for the purposes of the tenancy, or that he has broken a condition consistent with this Act and on breach of which he is under the terms of a contract between himself and his landlord, liable to ejectment, whereas in terms of Sections 44, a raiyat who has not acquired an occupancy right also be ejected on the ground that he has failed to pay an arrear of rent or where he has been admitted to occupation of the land under a registrered lease, on the ground that the term of the lease has expired as also on the ground that he has refused to agree to pay a fair and equitable rent determined under Section 46 or that the term for which he is entitled to hold at such a rent has expired.

20. From the definition of 'tenant' as contained in Section 3 of the Act, there is no doubt that an under-raiyat is also a tenant within the meaning of Section 3(3) of the Bihar Tenancy Act.

21. From the aforementioned provisions of the Act, as mentioned hereinbefore, it is clear that an under-raiyat irrespective of the fact as to whether he has acquired right of occupancy or not, can be evicted by the landlord only in terms of Sections 25 or Sections 44 of the Act as the case may be.

In that view of the matter, whenever an under-raiyat is threatened with unlawful ejectment i.e. ejectment by the landlord forcibly or otherwise and not in execution of a decree passed in a suit as contemplated under Section 89 of the Act, the under-raiyat would have a right to file an application u under Section 48E of the Act.