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10. Learned counsel for the society distinguished the judgment relied upon by Dr.Chandrachud, learned counsel for the review petitioner on the ground that the issue before the Division Bench of this Court in case of Alok Agarwal and Ors. (supra) was totally different. The relief sought before this Court in the said judgment were totally different. He submits that under section 91 of the MCS Act, the society is entitled to seek relief in respect of the property of the society. Section 91(1)(b) empowers the Co-operative Court to pass an order also against the person claiming through the member. He further submits that the Co- operative Court had recorded the finding that the developer who was the opponent no.1 was a member. The name of the developer was registered as a registered member.

KVM 1 & 2 - RPWL 65 & 66 OF 2019.doc

16. A perusal of the averments made in the dispute filed by the society clearly indicates that it was the case of the society that the review petitioner was claiming through the original opponent no.1 developer. A perusal of the written statement filed by the review petitioner clearly indicates that it was not his case that he was not claiming through original opponent no.1 or was claiming any independent right in the flat. The Co-operative Court has not decided the title of the review petitioner. The Co-operative Court has given specific finding insofar as the possession of the hut of the review petitioner and others is concerned. While rendering the finding that the review petitioner and few others were tresspassers in respect of the hut, the Co-operative Court rightly held that it did not have jurisdiction in respect of such hut being in possession of the tresspasser under section 91 of the MCS Act. However, the award for possession of the suit flat is not on the ground of review petition being a tresspasser.