JUDGMENT : DR. A.K.RATH, J. 1. Defendant is the appellant against a confirming judgment. 2. The plaintiff-respondent instituted Title Suit No.40 of 1985 in the court of the learned Munsif, Jeypore pleading, inter alia, that he is the absolute owner of the vacant plot. The defendant was inducted as a tenant. The rent was fixed at Rs.15.75 Paisa. The defendant had constructed a temporary structure to run business. Thereafter he demolished the same and built up a kutcha house. It was further pleaded that the defendant failed to pay the rent and became a chronic defaulter. Notice was issued to him. With this factual scenario, the plaintiff instituted the suit for mandatory injunction directing the defendant to remove the structure, recovery of possession and damages. 3. The defendant filed written statement admitting that he is a tenant. It is pleaded that the plaintiff is the absolute owner of the property. He used to tender the rent to the plaintiff. He is not a chronic defaulter. He approached the plaintiff to accept rent, but the later did not accept it. 4. On the inter se pleadings of the parties, the learned trial court framed eight issues. Both parties led evidence, oral and documentary to substantiate their case. The learned trial court decreed the suit. Aggrieved by the same, the defendant filed appeal before the learned District Judge, Jeypore at Koraput, which was subsequently transferred to the court of the learned Additional District Judge, Jeypore and renumbered as T.A No.25 of 1989(41/88 of D.J.). The appeal was dismissed. It is apt to state here that during pendency of the appeal, the sole appellant died, where after his legal heirs have been substituted. 5. The appeal was admitted on the following substantial question of law: “Whether the case of appellant was covered under Section 113 of the Transfer of Property Act ?” 6. Heard Mr.G.N.Mishra, learned Advocate for the appellants. None appeared for the respondent. 7. Mr.Mishra, learned Advocate for the appellants submitted that the defendant was a tenant under the plaintiff. He was paying the rent regularly. Heard Mr.G.N.Mishra, learned Advocate for the appellants. None appeared for the respondent. 7. Mr.Mishra, learned Advocate for the appellants submitted that the defendant was a tenant under the plaintiff. He was paying the rent regularly. He further contended that the plaintiff having accepted the rent and unilaterally adjusted the same towards arrears of rent and damages for use and occupation of the premises after issuance of the notice of termination of tenancy, the learned appellate court committed gross error of law in not applying waiver under Sec. 113 of the T.P.Act. 8. Defendant admits that he is a tenant under the plaintiff. On a threadbare analysis of the evidence on record and pleadings, the learned appellate court came to hold that tenancy was terminated on 30.11.1984. Thereafter occupation of the defendant became unauthorized. Thus reliance placed on Sec.113 of the T.P.Act is misplaced. There is no perversity or illegality in the findings of the court below. Moreover the defendant is in occupation of the house for near about four decades. He has no indefeasible right to continue as a tenant. The substantial questions of law are answered accordingly. 9. Resultantly, the appeal sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.