1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR SECOND APPEAL NO. 82 OF 2009 (Smt. Kantabai Govinda Dongre vs. Manohar Gangadhar Upadhye) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. MARCH 05, 2009. Heard Shri Kashid, learned counsel for the appellant – original defendant/ tenant. The challenge is to the concurrent judgments decreeing the suit of landlord for eviction of tenant. It is contended that the landlord did not plead presence or absence of any contract between himself and tenant and therefore provisions of Section 106 of Transfer of Property Act, were not applicable. It is further contended that the reliance upon the judgment of this Court in the case of Jainuddin vs. Sitaram, reported at 1981 Mh. L.J. 498, is misconceived because until and unless the dispute, if any, between the co-owners is first settled, the tenant cannot be held answerable to any particular co-owner. With the assistance of the counsel, I have perused both the judgments. The plaintiff has not 2 pleaded any express contract to the contrary under Section 106 of Transfer of Property Act and has issued notice of termination of tenancy by complying with it. It is, therefore, obvious that if any challenge was to be raised on the basis of contract between the parties, burden was upon the appellant / tenant to plead such contract but that has not been done. Similarly, the judgment of this Court in the case of Jainuddin vs. Sitaram, (supra), clearly shows that even if there is any dispute between co-owners inter se, the same need not arrest the prosecution of suit by one of the co-owners for eviction of tenant. The dispute inter se between the co-owners can be settled later on. In the circumstances, I find that questions sought to be raised by the learned counsel are not arising in present Second Appeal. Second Appeal is, therefore, dismissed. No order as to costs. JUDGE *GS. 3