JUDGMENT Mitra, J. - The Plaintiff, Respondent, claims to be a raiyat and has sued to eject the Defendants as under-raiyats. The Subordinate Judge has given the Plaintiff a decree reversing the decree of the Munsif. Defendant No. 1 is the Appellant in this Court. The Munsif dismissed the suit holding that the Plaintiff was a tenure-holder and not a raiyat. The Subordinate Judge has held that the Plaintiff as alleged by her is a raiyat, notwithstanding that the holding contains more than one hundred bighas, the presumption under sec. 6 of the Bengal Tenancy Act being rebutted by the conditions in the Plaintiff's lease as to the purposes of the tenancy. I agree with the Subordinate Judge that the lease created a raiyati interest. It is dated the 7th Bhadra 1269 (August 1862) and though mirasi (permanent) it distinctly authorises the grantee to cultivate the land demised. It seems to have been a grant to the Plaintiff benami in the name of one Kali Charan who, on the 17th Magh 1302 (February 1896), declared himself by a deed to be her benamdar. 2. Kali Charan executed a raiyati lease in favour of the Defendant on the 13th Bysakh 1290 (April, 1883), and it is conceded that the Plaintiff is bound by it. This lease may be construed either as raiyati or sub-raiyati. Ordinarily the terms of the two kinds of leases are indistinguishable. If the Plaintiff is a raiyat, the lease must be sub-raiyati if the Plaintiff is a tenure-holder the lease is necessarily raiyati. Thus the liability of the Defendent to ejectment depends mainly upon the status of the Plaintiff. 3. As I have said, the Plaintiff had only a raiyati interest by her lease and her status was not altered by her acquisition of putni and dur-putni interest in some shares of the taluq after the acquisition of raiyati interest. She became a fractional sharer only of the superior tenures and there could be no merger by operation of law. Sec. 22 of the Bengal Tenancy Act has no operation. She kept her right as tenure-bolder distinct from her right as a raiyat at a fixed rent or as mirasi raiyat. 4. The only other matter that arises for determination is whether under sec. 49, cl. (b) of the Bengal Tenancy Act, there can be ejectment of the Defendant. Sec. 22 of the Bengal Tenancy Act has no operation. She kept her right as tenure-bolder distinct from her right as a raiyat at a fixed rent or as mirasi raiyat. 4. The only other matter that arises for determination is whether under sec. 49, cl. (b) of the Bengal Tenancy Act, there can be ejectment of the Defendant. This question was not raised in the lower Courts. It is now said that the Defendant holds under a written and registered lease and under sec. 49, cl. (b), there is a bar to ejectment. But the lease has fixed no term of years. It is an ordinary lease from year to year. As a matter of fact the Defendant does not hold under it, because were it not for sec. 49 of the Bengal Tenancy Act he would be undoubtedly liable to ejectment on proper notice to quit. That old law--the law before October 1885--was in favour of the Plaintiff. I have held in my judgment in appeal from Appellate Decree No. 1625 of 1901, decided on the 12th June 1903, The case of Mohendra Nath Sepai v. Parbutty Charan Dass, reported at p. 136 that the words "written lease" in cl. (b) of sec. 49 of the Bengal Tenancy Act must mean a written lease, for a fixed term of years. This is also the view taken in appeal from Appellate Decree No. 2115 of 1900, decided on the 17th April 1903. The case of Komaruddi v. Sreenath Chowdhury, reported at p. 136 5. The expression of opinion in Madan Chandra Kapali v. Jaki Karikar 6 C.W.N. 377 (1902) is an obiter, and I have given my reasons for not relying upon it in my judgment in No. 1625 of 1901. 6. The appeal, therefore, fails and should be dismissed with costs. Nos. 283 and 285. The Plaintiff in these cases obtained possession of some of the plots of land covered by the lease in favour of Kali Charan by some arrangement with the Plaintiff in the suit out of which appeal No. 284 has arisen. The Plaintiff is, therefore, a raiyat and the Defendants are under-raiyats. The judgment in appeal No. 284 of 1902 governs these appeals. They are also dismissed with costs.