Judgment S.N.Hussain, J. 1. Heard learned Counsel for the appellant. 2. This is second appeal has been filed by the sole defendant-appellant-appellant against order of his eviction vide judgment and decree of both the learned courts below. 3. The matter arises out of Eviction Suit No. 49 of 1989 which was filed by sole plaintiff-respondent-respondent for eviction of defendant on the grounds of personal necessity of the plaintiff as well as default in payment of rent and breach of terms of tenancy by the defendant with respect to the suit premises, which is a house with Sahan. 4. The aforesaid suit was decreed only on the grounds of default in payment of rent as well as breach of terms of tenancy whereas the plaintiffs plea of personal necessity was rejected by the learned Execution Munsif, Muzaffarpur vide judgment and decree dated 06.11.2004. Against the aforesaid judgment and decree of the learned trial court the defendant filed Eviction Appeal No. 4 of 2004 which was dismissed by the learned Additional District Judge-9th, Muzaffarpur, who affirmed the judgment and decree of the trial court vide judgment and decree dated 24.09.2005. Against the said judgments and decree of the learned courts below the defendant has filed the instant second appeal. 5. It is an admitted fact that earlier the defendant was tenant of the plaintiff in the suit premises. However, the defendant raised a plea in his written statement that on 26.12.1986 there was a written agreement for sale executed by plaintiff in favour of defendant with respect to the suit premises for Rs. 63,000/-, out of which Rs. 18,000/- was paid at the time of agreement whereas remaining Rs. 45,000/- was to be paid in three yearly instalments of Rs. 15,000/- each, which has also been paid by defendant in the succeeding years but in spite of that the plaintiff did not execute any sale deed in favour of defendant, who was thus constrained to file Title Suit No. 155 of 1990 against the plaintiff for specific performance of the said agreement for sale and the said suit is still pending before the learned Subordinate Judge, Muzaffarpur. In the said circumstances learned Counsel for the appellant raises following questions claiming them to be substantial questions of law, on the basis of which this second appeal according to him is to be admitted for final hearing: (i) There was specific plea of the defendant regarding agreement for sale between the parties as well as possession of the defendant as part performance of the said agreement, whereafter the relationship between the parties changed and since the date of agreement for sale no relationship of landlord and tenant existed between the parties. Furthermore, no document has been produced by the plaintiff to show that the said agreement for sale was a forged one whereas Title Suit No. 155 of 1990 is pending for specific performance of contract. This aspect of the matter having been completely ignored by the learned courts below the judgments and decree passed by them suffer from serious illegalities. (ii) Initially the subject matter of the suit, detailed in plaint, was the southern portion of the plot in question but during the course of hearing of title appeal the learned lower appellate court allowed the plaintiffs petition for amendment of the plaint with regard to the suit premises changing it to the northern portion in which the defendant lived. No chance of rebuttal was given to appellant which makes the judgment and decree of the learned courts below illegal. (iii) Under the general provision of the Bihar Buildings (Lease, Rent and Eviction) Control Act, (hereinafter referred to as "the Act" for the sake of brevity) the striking out of defendants defence due to non-compliance of order passed under Section 15 of the Act was maintainable. 6. So far the first question raised by the appellant is concerned, he has produced a written agreement for sale dated 26.12.2006, said to have been executed by the plaintiff in favour of the defendant with respect to the suit land, but in the said document it had been stated that Rs. 18,000/- had been paid as advance at the time of agreement for sale whereas remaining 45,000/- was to be paid in three yearly instalments of Rs. 15,000/- each for which receipt would be obtained by the defendant from the plaintiff and only thereafter the sale deed would be executed after full payment. 18,000/- had been paid as advance at the time of agreement for sale whereas remaining 45,000/- was to be paid in three yearly instalments of Rs. 15,000/- each for which receipt would be obtained by the defendant from the plaintiff and only thereafter the sale deed would be executed after full payment. From the records of the case it is quite apparent that neither any such receipt had been produced by the defendant in the learned court below nor there is any averment in the written statement of the defendant that he had obtained any such receipt from the plaintiff, although the eviction suit was filed in the year 1989, i.e. after about three years of the said agreement. Furthermore Title Suit No. 155 of 1990 has been filed by the defendant for specific performance of contract only after the said eviction suit had been filed by plaintiff. 7. Learned Counsel for the appellant has relied upon a decision of the Hon ble Jharkhand High Court in the case of Jalil @ Jalil Ahmad @ Md. Jalil Ahmad V/s. Syed Maniruddin reported in IV (2006) CLT 252, in paragraph-10 of which a decision of the Hon ble Supreme Court in case of P. Kanthimathi and Ors. V/s. Mrs. Beatrice Xavier 2001 (2) JLJR 372 (SC) has been relied upon in which it was decided that "Any jural relationship between two persons could be created through agreement and similarly could be changed through agreement subject to the limitations under the law. Earlier when appellants were induced into tenancy it only means both agreed that their relations is to be that of a landlord and tenant. Later when landlord decides to sell this property to the tenant and tenant agreed by entering into agreement they by their positive act changed their relationship as purchaser and seller. When seller-landlord accepts sum he actually acts under this agreement. This acceptance preceded by agreement of sale changes their relationship. This is how they intended. Once accepting such a change then their relationship of landlord-tenant ceases." 8. When seller-landlord accepts sum he actually acts under this agreement. This acceptance preceded by agreement of sale changes their relationship. This is how they intended. Once accepting such a change then their relationship of landlord-tenant ceases." 8. In the instant case the matter is a bit different as there was no material before the learned courts below to show that after the agreement for sale the plaintiff had received the consideration amount and no receipts in terms of the agreement itself could be produced nor any statement with regard to issuance of such a receipt having been made in the written statement there was nothing to show that any acceptance preceded by agreement of sale had been made, hence on the basis of the said judgment it cannot be held that there was any change in the relationship between the parties in the instant case. 9. Learned Counsel for the appellant also relies upon a decision of a Division Bench of this Court in case of Smt. Kalawati Tripathi and Ors. V/s. Smt. Damayanti Devi and Anr. reported in, in which it had been specifically held that before a person can claim benefit under Section 53-A of Transfer of Property Act, 1882, he has to fulfill all the requirements as provided under the aforesaid section. It is also held by their lordships that if any of the conditions are not fulfilled then the transferee cannot avail the provisions of the aforesaid sections and it is well settled that the plea of part performance can be used as a shield and not as a sword. Furthermore, the said section did not confer active title on the transferee in possession, it only imposes a statutory bar on the transferor and confers a right on the transferee to defend his possession. It was also held in the said decision that in a suit for eviction when the tenant raises a question of title or even a plea of part performance, the jurisdiction of the court to decide the suit for eviction is not ousted, rather the court can go into the question incidentally for the purpose of deciding the main question in the suit. From the facts and circumstances of the case it is quite apparent that the defendant had not been able to show by valid material that he had complied his part of the agreement nor he could produce any receipt showing any payment of the remaining amount after the agreement for sale. In the said circumstances the said decision of Division Bench of this Court is also not applicable to the facts and circumstances of this case. 10. The learned courts below have considered the matter in detail from which it is quite apparent that, apart from the question of genuineness of the said agreement, the defendant was unable to show that he had ever done any act which was required to be done on the terms of the alleged agreement dated 26.12.1986, rather it is crystal clear he merely sat over the matter and only when Eviction Suit No. 49 of 1989 was filed by the plaintiff, the defendant filed Title Suit No. 155 of 1990 against the plaintiff for specific performance of said agreement, which as per the defendant is still pending although about 15 years have elapsed. 11. So far the second question raised by the appellant with regard to amendment of plaint is concerned, it is quite apparent that the plaintiffs petition for amendment of the plaint was allowed at the time of final hearing of the title appeal but the said order, allowing amendment, has never been challenged by the defendant-appellant, although defendant had sufficient opportunity to move the higher court against it. Furthermore the defendant has also failed to show that he ever moved the learned court below for a chance of rebuttal. In any view of the matter the defendant himself having admitted that he was in occupation of the northern portion and before 26.12.1986 he was tenant with regard to the said portion the amendment sought cannot be held to be unjustified in the aforesaid facts and circumstances. 12. So far the third question regarding striking out of defence is concerned, the provision of Section 15 of the Act is not applicable only to the proceeding under Section 14 of the Act, rather it is applicable also to the general proceedings of eviction suits under the Act. 12. So far the third question regarding striking out of defence is concerned, the provision of Section 15 of the Act is not applicable only to the proceeding under Section 14 of the Act, rather it is applicable also to the general proceedings of eviction suits under the Act. Hence, the order passed by the learned courts below under the provision of Section 15 of the Act cannot be held to be illegal or unjustified and moreover it was never challenged. Hence when the defendant failed to comply the said order, his defence, qua tenant, was rightly struck off by the learned court below. 13. In the aforesaid facts and circumstances this Court does not find that none of the questions raised by the defendant-appellant is substantial question of law on the basis of which this second appeal can be admitted. 14. Furthermore, this Court also does not find any illegality in the impugned judgments and decree of the learned courts below and, accordingly, the instant second appeal is dismissed at this stage of Hearing under Order XLI Rule 11 C.P.C. 15. However, the judgments and decree passed in the eviction appeal and this second appeal cannot be used against the appellant in Title Suit No. 155 of 1990, which has to be decided on its own merit, in terms of the specific provisions of law, as well as the pleadings and evidence of the parties in that suit.