Judgment Hari Shankar Prasad, J. 1. This appeal is directed against the judgment dated 31.1.1989 and decree dated 14.3.1989 passed in Title Appeal No. 89/17/87/88 whereby and whereunder the learned Additional Judicial Commissioner, Ranchi allowed the appeal and reversed the judgment dated 26.9.1987 and the decree dated 3.11.1987 passed in Title Suit No. 37/85. 2. Case of the plaintiff-appellant in brief is that land and buildings comprised within holding No. 669, ward No. V corresponding to M.S. Plot Nos. 85 and 86 situated at main road, Ranchi belonged to Bishu Mistri, son of Budhan Mistri and after his death, his son Ram Chandar Mistri came into possession of the said property. Ram Chandra Mistry died leaving behind three daughters namely Chintamani Devi, Gango Devi and Nago Devi, Most. Gango Devi and Nago Devi after their marriage lived in their respective sasurals and they relinquished their right over the said property and the plaintiff-appellant (now deceased) herself came in possession of the suit property. She is in exclusive possession of the suit property and she inducted one Abdul Hamid as tenant on monthly rental of Rs. 30/- in some portion of the building and the payment was made according to the English Calendar and Abdul Hamid was carrying business of hosiery goods in the tenanted portion. It is stated that Abdul Hamid paid rent up to June, 1984 and thereafter he fell ill and died on 25.10.1984. Abdul Hamid kept Md. Nayeem Khan, defendant-respondent as servant during the last phase of his life in the year 1984 carried out the aforesaid business and after the death of Abdul Hamid, the defendant-respondent continued in possession of the suit premises without any right, title or interest and he is trespasser. The plaintiff-appellant requested Md. Naryeem Khan to vacate the suit premises but he reported the matter to the police and subsequently a proceeding under Section 144, Cr PC, was started and the said proceeding was absolute against the plaintiff-appellant. As a result of proceeding shadow was cast on plaintiff-appellants title over the suit premises, hence the plaintiff-appellant filed suit for declaration of right, title and interest over the suit premises and recovery of possession in respect of the same. 3. As a result of proceeding shadow was cast on plaintiff-appellants title over the suit premises, hence the plaintiff-appellant filed suit for declaration of right, title and interest over the suit premises and recovery of possession in respect of the same. 3. On the other hand, case of the defendant-respondent is that he is nephew of Abdul Hamid who was original tenant of the suit premises on month to month tenancy at the rate of Rs. 30/- per month. The defendant-respondent was carrying business of hosiery since child hood jointly with his uncle Abdul Hamid. Abdul Hamid suffered paralysis and was not able to attend the business, though Abdul Hamid continued business of hosiery in partnership with his nephew, defendant-respondent and an agreement of partnership was also executed between Abdul Hamid and the defendant-respondent on 3.4.1984 to the knowledge of the plaintiff-appellant and Abdul Hamid also executed a will in respect of the hosiery business to the defendant-respondent on 10.8.1984. After death of Abdul Hamid, the defendant-respondent being his nephew and sole heir inherited the tenancy right as a month to month tenant. The defendant-respondent paid rent to the plaintiff-appellant up to the month of June 1984. He tendered the rent of July 1984 in August 1984 which was refused by the plaintiff-appellant and as such, he remitted the same by postal money order which was also refused and thereafter he has been continuously remitting the rent of each month to the plaintiff- appellant. The plaintiff-appellant has tried to oust the defendant-respondent from the suit premises forcibly and hence, the matter was reported to the police, as a result of which a proceeding under Section 144, Cr PC, was drawn up and the said proceeding has been vacated in favour of the defendant-respondent. In the trial Court, the suit was decreed in favour of the plaintiff-appellant. Being aggrieved by the judgment and decree of the trial Court, the defendant-respondent filed appeal being title appeal No. 89/17/87/88 which was allowed in his favour and thereafter this second appeal has been filed on behalf of the plaintiff-appellant wherein substantial questions of law was framed, which are as under : 1. Whether the appellate Court was justified in allowing the appeal without even considering the findings recorded by the trial Court that the tenant had defaulted in payment of rent and was therefore, liable to be evicted on the ground of default. 2. Whether the appellate Court was justified in allowing the appeal without even considering the findings recorded by the trial Court that the tenant had defaulted in payment of rent and was therefore, liable to be evicted on the ground of default. 2. Whether having regard to the provisions of Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982, the respondent, a nephew of the deceased tenant, could claim tenancy rights in the shop in question. 4. Learned counsel appearing for the plaintiff-appellant submitted that the appellate Court without considering the fact decreed the suit on the ground that defendant-respondent had made default in payment of rent from July 1984 to September 1984 and thereby committed default in making payment of rent and on this score, the defendant-respondent was liable to be evicted from the suit premises, but at appellate stage this aspect of the matter was not considered and only, whether the defendant acquired tenancy right or not in view of the fact that he was nephew of the original tenant inducted in the house on monthly rent of Rs. 30/- per month and after the death of the original tenant, this defendant who claims himself to be the nephew of the original tenant and with-whom he was continuing business of hosiery goods in partnership acquired tenancy, was only taken into consideration and the defendant-respondent had filed the first appeal against the judgment of the learned trial Court who had decreed the suit and allowed the appeal. Although, the learned trial Court had framed issues; whether defendant is trespasser as alleged by the plaintiff-appellant or he is tenant in the suit premises as set up by the defendant. Since defendant-respondent himself made out a case that he stepped in the shoes of original tenant and being nephew of the original tenant, he acquired tenancy right in the house. It was also submitted that from perusal of findings of the appellate Court, it will appear that the appellant Court did not touch on the point of default made by tenant in payment of rent and simply considered the fact that whether Md. Nayeem Khan, defendant-respondent acquired the tenancy right or not and considered that aspect of the matter and held that defendant-respondent has acquired tenancy right and allowed the appeal. 5. Nayeem Khan, defendant-respondent acquired the tenancy right or not and considered that aspect of the matter and held that defendant-respondent has acquired tenancy right and allowed the appeal. 5. On the other hand, learned counsel appearing for the defendant-respondent submitted that though the rent due for the month of July and August, 1984 was sent through money order but the same was refused and thereafter this defendant-respondent went on remitting the rent through money order and, therefore, refusal or acceptance will mean that he has waived the rent to get eviction on the point of default in making payment of rent. Learned counsel further pointed out that no cause of action for filing the suit arose because the plaintiff has not made out any case under the provisions of Bihar Building (Lease, Rent and Eviction) Control Act, 1982 because the plaintiff has not made out a case that she required premises for her own use and, therefore, no cause of action has arisen in filing the suit. In this connection, he placed reliance upon 1942 Calcutta 410. Learned counsel for the respondent also submitted that since this defendant-respondent was nephew of the original tenant and was continuing partnership business with his uncle and after the death of the original tenant Abdul Hamid, he acquired tenancy right. But before his death, Abdul Hamid executed a will (Ext. A and B) where he made him heir of his property. It was also submitted that substantial question of law formulated in this case, is also not a substantial question of law and, therefore, this second appeal should be dismissed in view of the fact that substantial question of law as formulated, in fact, is not substantial question of law. In this connection, reliance was placed upon 1998 (6) SCC 683 and submitted that the appellate Court did not consider the issues dealt with by the trial Court, is not a substantial question of law and, therefore, question raised in second appeal as substantial question of law, is not a substantial question of law and, therefore, this second appeal should be dismissed. 6. On the other hand, in course of submission, the learned counsel for the appellant had submitted that acceptance of rent even after due date does not constitute waiver and it cannot be held to be abandonment of right of landlord to enforce eviction of his tenant. 6. On the other hand, in course of submission, the learned counsel for the appellant had submitted that acceptance of rent even after due date does not constitute waiver and it cannot be held to be abandonment of right of landlord to enforce eviction of his tenant. In this connection, reliance was placed upon 2003 (3) BLJ 586 and learned counsel drew my attention to para 10 and 11 of the judgment which is quoted hereinbelow : "10. Shri Roy did not make any argument to the contrary that a defaulter tenant continues to be statutory tenant. He, however, contended that where the Court passes an order directing the tenant to pay rent under Section 15 of the Act, the case would stand on a different footing than where the tenant pays rent and the same is accepted by the landlord on his own. In our opinion, there is no warrant for this distinction. According to us, after incurring the liability for being evicted on the ground of default, the tenant does not get any immunity from payment of rent, whether he pays rent pursuant to any order of the Court or he does so on his own is of no consequence. Therefore, if the tenant is liable to pay rent and such rent is accepted by the landlord it cannot be said that he has waived his right to seek eviction of the tenant. 11. Coming to the question of waiver, it is well known that waiver is intentional relinquishment of a known right. In the context of a Rent Control Act what is the known right which the landlord by acceptance of rent can be said to have intentionally relinquished? The only right which the landlord is supposed to be aware of is his right to eviction on the basis of the decree passed by the Court but until such eviction takes place the tenant continues to be a statutory tenant during the pendency of the suit. If the tenant is liable to pay rent during the pendency of the suit, it is not understandable how acceptance of rent can be held to be abandonment of his right to enforce eviction. There is thus no question of waiver of his right. This precisely is the import of the Full Bench decision in Raj Kumar Prasads case, which is binding on us." 7. There is thus no question of waiver of his right. This precisely is the import of the Full Bench decision in Raj Kumar Prasads case, which is binding on us." 7. In the instant case, from perusal of Ext. C to C/3 it will appear that defendant-respondent sent the rent due for the month of July and November on 1.12.1984 vide Ext. C and the rent for the month of June, 1984 was given in the month of December 1984 vide Ext. C/5 and these exhibits itself shows that defendant has become defaulter. Further, definition of tenant has been given under Section 2 (h) of the B.B.C. Act, 1982, which is quoted herein-below : "Section 2 (h)."tenant" means any person by whom, or on whose account rent is payable for a building and includes (i) a person continuing in possession after the termination of the tenancy in his favour; and (ii) a person who occupies a building as an employee of the landlord of such building either on payment of rent or otherwise; (iii) in the event of the death of the person continuing in possession after the termination of his tenancy, subject to the order of succession and condition specified, respectively, in explanation I and II to this clause, such of the aforesaid persons (a) spouse; (b) son or unmarried daughter, or where there are both, both of them; (c) parents; (d) daughter-in-law, being the widow of predeceased son, as had been ordinarily residing in the premises with such person as a member or members of his family up to the date of his death, but does not include any person against whom an order or decree for eviction has been made" and as per definition of tenant, defendant-respondent nowhere comes in the definition of tenant and he cannot acquire the tenancy right of the original tenant. 8 After having considered the fact stated above and position of law, I am of the view that the Court below was not justified in allowing the appeal. In that view of the matter, the judgment and decree of the learned appellate Court is hereby set aside and the suit is decreed in terms of the judgment and decree passed by the learned trial Court. However, in the circumstances there will be no order as to costs.