Brijesh Kumar vs The Jyoti Raw Phooley Co-Operative Urban Thrift And Credit Society Ltd
- Court
- Delhi High Court
$~59
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Date of decision: 19 August, 2026
# CNR No. DLHC010385432026
+ RFA 862/2026, CM APPL. 55515/2026
SH. BRIJESH KUMAR
S/o Sh. Laxmi Narain
R/o F -144, Second Floor,
Gall No.2, Ganga Vihar
Delhi-110094 .....Appellant
Through: Mr. K.C. Mittal, Sr. Advocate with
Mr. Yugansh Mittal and Mr. Keshav
Poonia and Ms. Ayesha, Advocates.
versus
THE JYOTI RAW PHOOLEY CO-OPERATIVE URBAN
THRIFT AND CREDIT SOCIETY LTD
Having its office at F/144,
GALl No.2, GANGA VIHAR,
DELHI-110094. .....Respondent
Through:
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T (oral)
CM APPL. 55516/2026 (Exemption)
1. Exemption allowed, subject to all just exceptions.
2. The Application stands disposed of.
RFA 862/2026
3. Regular First Appeal under Section 96 read with Section 105 of the
Code of Civil Procedure, 1908 has been preferred by the Appellant against
the Judgment and Decree dated 17.07.2026 and the Order dated 01.07.2026,
RFA 862/2026 Page 1 of 12
Signature Not Verified
Signed By:VIKAS
ARORA
Signing Date:31.08.2026
13:09:36
passed by the Learned District Judge, Delhi, in CS No. 57/2025, whereby
the Suit filed by the Plaintiff/Respondent was decreed for Possession and
Permanent Injunction in respect of the suit property, with costs, while the
claim for damages/mesne profits, was dismissed.
4. The brief facts are that the Plaintiff is a co-operative Society
registered on 09.08.1984, engaged in the business of thrift and credit and in
extending loans to its registered members. It is the owner of property
bearing No. F-144, Gali No. 2, Ganga Vihar, Delhi, admeasuring 50 square
yards, by virtue of a registered General Power of Attorney dated
11.03.2004 executed by the erstwhile owner; its office being situated on the
ground floor and its conference hall, on the first floor.
5. It was the case of the Plaintiff that the Defendant remained the
President of the Society from 2012 till 2018, and that during his tenure, he
took possession of one room, kitchen, latrine, bathroom and a hall
constructed on the second floor of the said property, (hereinafter referred
to as the "suit property") , on the pretext of acting as a caretaker, where he
resides with his family. Upon objection being raised by the members
regarding his occupation without payment of electricity and water charges,
the Defendant commenced payment of Rs. 2,000/- per month, though no
rent agreement or writing was ever executed. The said amount was paid only
twice, on 19.08.2018 and 17.09.2018, and never, thereafter.
6. A Notice dated 14.10.2018 was served upon him to hand over vacant
possession, but it evoked no response. Thereafter, the Plaintiff preferred an
Eviction Petition RC ARC No. 116/2018, under Section 14(1)(e) read with
Section 25-B of the Delhi Rent Control Act, 1958, which was withdrawn
with liberty to file afresh, upon a report of the Sub-Divisional Magistrate
RFA 862/2026 Page 2 of 12
Signature Not Verified
Signed By:VIKAS
ARORA
Signing Date:31.08.2026
13:09:36
that the provisions of the said Act were not applicable to the property, vide
Order dated 13.11.2024.
7. The Plaintiff asserted its bona fide requirement of the suit property for
maintaining a record room for the records of its members, there being no
other accommodation available with it. A Legal Notice dated 06.12.2024
terminating the status of the Defendant as caretaker and asking him to
deliver possession was served, but was neither replied to nor complied with,
constraining the Plaintiff to institute the present CS No. 57/2025 for
Possession, Permanent Injunction and Damages/Mesne Profits @ Rs. 500/-
per day.
8. The Defendant was served on 04.04.2025 and was required to file his
Written Statement by 04.05.2025. It was filed only on 30.07.2025. The delay
of 88 days was condoned vide Order dated 29.10.2025 subject to costs of
Rs. 25,000/-, by the learned Trial Court, by observing that the explanation
offered, namely the shifting of the office of counsel, stood upon thin ice. By
the same Order, the Defendant, on instructions, conveyed no objection to the
Application under Order XXXIX Rules 1 and 2 CPC, and was restrained
from creating third-party interest in the suit property or parting with the
possession thereof.
9. The costs were not paid. The Application seeking waiver was
dismissed on 05.12.2025, and vide Order dated 25.02.2026 it was directed
that the Written Statement shall not form part of the record . CM(M) No.
790/2026 preferred before this Court against the imposition of costs was
disposed of as withdrawn, on 10.04.2026.
10. IA No. 1/2026 moved under Section 151 CPC seeking permission to
deposit the costs and to bring the Written Statement on record, was
RFA 862/2026 Page 3 of 12
Signature Not Verified
Signed By:VIKAS
ARORA
Signing Date:31.08.2026
13:09:36
dismissed vide Order dated 01.07.2026.
11. The issues were framed on the pleadings on 29.10.2025 , as under:
(i) Whether the plaintiff is entitled to a decree of
possession as prayed for in prayer (a) of the
plaint? OPP
(ii) Whether the plaintiff is entitled to a decree of
permanent injunction as prayed for in prayer (b) of
the plaint? OPP
(iii) Whether the plaintiff is entitled to recovery of
damages/mesne profits as prayed for in prayer (c)
of the plaint? OPP
(iv) Relief.
12. The Plaintiff examined PW-1, Sh. Dal Chand , its Authorised
Representative, who deposed on similar lines as the averments made in the
Plaint and proved the requisite documents, including the site plan Ex.
PW1/2, the notice dated 14.10.2018 Ex. PW1/6, the rent receipts Ex. PW1/7
(colly.), the General Power of Attorney executed by Smt. Kranti Devi Ex.
PW1/8 (OSR), the legal notice dated 06.12.2024 Ex. PW1/9, and the Order
dated 13.11.2024 Mark 'A'.
13. PW-2, Sh. Vinod Chaudhary , its Accountant, supported the case of
the Plaintiff, by way of his affidavit Ex. PW2/A.
14. Both witnesses were cross-examined at length on 30.05.2026 on
behalf of the Defendant.
15. Since the Written Statement did not form part of the record, no
defense evidence was led by the defendant.
16. The learned Trial Court in the impugned Judgment, on appreciation
RFA 862/2026 Page 4 of 12
Signature Not Verified
Signed By:VIKAS
ARORA
Signing Date:31.08.2026
13:09:36
of the evidence, held that Plaintiff was entitled to possession. However, the
claim for damages was dismissed, for want of evidence.
17. The Suit of the Plaintiff was accordingly decreed for possession and
permanent injunction, with costs.
18. Aggrieved by the impugned judgment, present Appeal has been filed
by the Defendant/Appellant.
19. The grounds of challenge are that the Suit was barred by Sections 70
and 132 of the Delhi Co-operative Societies Act, 2003 ; the Plaint itself
averring that the Appellant was the President of the Society and entered into
the suit property in that capacity; a President being an "officer" under
Section 2(t), the dispute fell within Section 70(1)(c) and was required to be
referred to the Registrar, and the jurisdiction of the Civil Court is excluded.
This jurisdictional question has not been considered and the Suit is not
maintainable on this account.
20. It is further contended that the Order dated 01.07.2026 is assailable
under Section 105 CPC; IA No. 1/2026 being in substance, an Application
under Section 148 CPC for enlargement of time, the delay in filing having
already been condoned and only payment of costs remaining, and the
consequence visited upon the Appellant, is wholly disproportionate.
21. The finding of prior settled possession since 2004 is also assailed as
resting merely upon the association of PW-1 and PW-2 with the Society and
upon the absence of any suggestion to the contrary in their cross-
examination, which does not establish possession of the second floor,
unsupported as it is by any conveyance, possession letter, municipal, tax or
utility record, particularly when the title of the Plaintiff was disbelieved.
22. Learned counsel for both parties have reiterated, in their Written
RFA 862/2026 Page 5 of 12
Signature Not Verified
Signed By:VIKAS
ARORA
Signing Date:31.08.2026
13:09:36
Submissions, the respective stands taken in the pleadings.
Submissions heard and record perused.
23. The present Appeal arises out of a Suit for possession of the second
floor of premises belonging to the plaintiff, Co-Operative Society, filed
against the defendant/Appellant, who was the erstwhile President. The
learned Trial Court, while holding that the Respondent/Plaintiff had no title,
decreed the Suit on a finding of prior settled possession . The Appellant
assails the decree principally upon the ouster of civil jurisdiction, the
exclusion of his Written Statement , and upon the sufficiency of the evidence
of possession.
I. Whether the Suit was Barred by Sections 70 and 132 of the Delhi
Co-operative Societies Act, 2003:
24. The first objection taken by the Appellant is that he had occupied the
suit property as the President of the Society and the Civil Court has no
jurisdiction, in terms of S.70 Delhi Co-operative Societies Act, 2003.
25. Section 70 of Delhi Co-operative Societies Act, 2003, reads as under:
“70. Disputes which may be referred for arbitration.
(1) Notwithstanding anything contained in any law for the
time being in force, if any dispute touching the
constitution, management or the business of a co-
operative society other than a dispute regarding
disciplinary action taken by the cooperative society or its
committee against a paid employee of the co-operative
society arises…”
26. S.70(1) of the Delhi Co-operative Societies Act, 2003 requires
RFA 862/2026 Page 6 of 12
Signature Not Verified
Signed By:VIKAS
ARORA
Signing Date:31.08.2026
13:09:36
reference to the Registrar of a dispute " touching the constitution,
management or the business" of a Co-Operative Society. Section 70(1)(c)
brings within its ambit a dispute between a society and its past officer. That
a President is an "officer" within the meaning of Section 2(t) is not in
dispute, nor is it in dispute that the Appellant/Defendant held that office
between 2012 and 2018.
27. Firstly, the dispute must be one "touching" the constitution,
management or business of the society, to attract the bar of S.70.
28. In Deccan Merchants Co-operative Bank Ltd. vs. Dalichand Jugraj
Jain , AIR 1969 SC 1320, the Supreme Court held that the expression
"business" has been employed in the narrower sense of the actual trading,
commercial or similar business activity which a society is authorised to
undertake under the Act, the Rules and its bye-laws, and that it cannot be
said that whatever a society does, or is required to do for carrying out its
objects, forms part of its business.
29. The Respondent/Plaintiff is a Thrift and Credit Society, its business
being the extension of loans to its registered members. A suit for recovery of
possession of immovable property from a person in wrongful occupation
does not, upon the test laid down in Deccan Merchants (supra) , touch the
business or the management of the society.
30. For Section 70 to be attracted, the dispute must arise out of, or be
referrable to the office held. The Appellant, though was admittedly the
president of the Society in 2012, when he took the possession of the suit
property, but it was not relatable to his office; merely because he happened
to be president at the relevant time, would not make the possession as one
relating to his office and does not relate to “ the business or the management
RFA 862/2026 Page 7 of 12
Signature Not Verified
Signed By:VIKAS
ARORA
Signing Date:31.08.2026
13:09:36
of the society.”
31. Pertinently, PW-1 has deposed in his cross-examination dated
30.05.2026 that the Appellant/Defendant was never given possession of the
suit property, and that he asserted of his own accord that being the President,
he would reside therein and take care of the Society.
32. The occupation was neither given by the Society, nor traceable to any
Resolution, Appointment or arrangement of the Society. Moreover, he
ceased to be the President in 2018.
33. The bar under Section 132(1)(c) operates only in respect of a dispute
"required by Section 70, to be referred to the Registrar." Therefore, the Suit
of the plaintiff was not barred under S. 132 of the Society’s Act.
II. Whether the Respondent Established Prior Settled Possession:
34. The Plaintiff sought possession from the Defendant, its erstwhile
President, who has been in occupation of the Suit Property since 2012 .
35. To prove their ownership, PW-1, Sh. Dal Chand , deposed that the
Society is the owner of the Suit Property by virtue of a Power of Attorney
executed by the erstwhile owner, in its favour. Though the Plaint refers to a
Power of Attorney dated 11.03.2004, the record shows that it is in fact, the
registered General Power of Attorney dated 27.11.1982 , Ex.PW-1/8. A bare
perusal thereof, reflects that it was executed by Smt. Kranti Devi w/o Sh.
Vijay Pal in favour of the Respondent/Plaintiff Society , through its President
Smt. Suresh Kumari and its Secretary Sh. Dal Chand, for the management,
control and supervision of the suit property.
36. It is explained therein, that the Executant was a joint owner and co-
sharer, having purchased the property jointly with Smt. Vimla Devi w/o Sh.
RFA 862/2026 Page 8 of 12
Signature Not Verified
Signed By:VIKAS
ARORA
Signing Date:31.08.2026
13:09:36
Charan Singh through GPA, Agreement to Sell and Receipt. Smt. Vimla
Devi sold her half share to a third person unconnected with the Executant;
the Executant sold a portion admeasuring 50 square yards to another, and
the remaining portion was handed over to the Society for the purposes
stated therein.
37. There are admittedly no conventional documents of purchase in the
name of the Society. However, the Society has been in possession of the suit
property by virtue of the aforesaid General Power of Attorney, and there is
no evidence of any other person having been in possession thereof at any
point of time.
38. In Rame Gowda vs. M. Varadappa Naidu, (2004) 1 SCC 769 , the
Supreme Court held that in the absence of proof of better title, prior peaceful
settled possession is itself evidence of title, the law presuming possession to
go with title unless rebutted, and approved the statement in Nair Service
Society Ltd. vs. K.C. Alexander, (1968) 3 SCR 1 that where the facts disclose
no title in either party, possession alone decides. It was further reiterated
therein, upon Nagar Palika, Jind vs. Jagat Singh, (1995) 3 SCC 426 , that
where the defendant fails to prove his title to the suit land, the plaintiff may
succeed in securing a decree for possession upon the strength of his prior
possession.
39. It was averred in the Plaint and deposed by PW-1 that the Defendant
entered upon the suit property in 2012, while he was the President of the
Society. There was no authority, authorisation or resolution of the Society
by virtue of which he came into occupation; he merely occupied the
premises in that year; his possession does not relate to his office. This aspect
stands unrebutted on the record .
RFA 862/2026 Page 9 of 12
Signature Not Verified
Signed By:VIKAS
ARORA
Signing Date:31.08.2026
13:09:36
40. Once it is shown that the Defendant came into occupation of the suit
property through the Plaintiff, he cannot be permitted to question the title of
the Plaintiff. His possession having been acquired through the Plaintiff, the
question of challenge to the title of the Plaintiff through conventional
documents of sale, does not arise.
41. It was also noticed in Rame Gowda (supra), in setting out the
attributes of settled possession, that occupation of property by a person as an
agent or servant acting at the instance of the owner, does not amount to
actual physical possession. The Defendant, upon the case pleaded against
him, occupied the suit property as a caretaker; such occupation is not
possession in its own right and could not ripen into one.
42. The next aspect is the capacity in which the Defendant occupied the
suit property. There is no challenge to the testimony of PW-1 that he entered
the premises as a caretaker, on the pretext of looking after the Society. PW-1
explained that on account of the objection of the members that he was
residing without paying any charges, receipts for two months in the sum of
Rs. 2,000/- came to be created, but denied that the Defendant was residing in
the suit property as a tenant, reaffirming that he came in as a caretaker.
43. It is thus, established from the unrebutted testimony of PW-1,
corroborated by PW-2, Sh. Vinod Chaudhary, the Accountant, that there
was no relationship of landlord and tenant between the Society and the
Defendant.
44. Even if the contention of the Defendant that he was inducted as a
tenant @ Rs. 2,000/- per month is considered, it requires examination
whether the bar under Section 50 of the Delhi Rent Control Act, 1958 would
be attracted. This aspect has been considered in detail by the learned District
RFA 862/2026 Page 10 of 12
Signature Not Verified
Signed By:VIKAS
ARORA
Signing Date:31.08.2026
13:09:36
Judge, who referred to the earlier proceedings in RC ARC No. 116/2018
under Section 14(1)(e) of the DRC Act filed by the Plaintiff, to recover
possession on the ground of bona fide requirement.
45. As per the GPA Ex.PW-1/8, the property is located in Village
Gokulpur, Illaqa Shahdara, Delhi. Section 3 read with Section 1(2) of the
DRC Act mandates that the Act applies within the limits of the NDMC or
the Delhi Cantonment Board, or to such urban areas within the limits of the
MCD, as are specified in the First Schedule annexed to the Act, and may be
extended by the Central Government by notification in the Official Gazette
to any other urban area included within the limits of the MCD.
46. The learned District Judge observed that Village Gokulpur does not
find mention in the First Schedule annexed to the DRC Act. Though the area
was urbanised under Section 507 of the MCD Act in 2019, the provisions of
the DRC Act have not been extended thereto, by any Notification of the
Central Government under Section 1(2). In this Appeal as well, the
Appellant has not been able to produce any Notification to show that the
DRC Act applies to the suit property.
47. In the absence of such Notification, the area of Gokulpur is not
notified under the DRC Act, and the bar of Section 50 is not attracted, even
if it is accepted that the Defendant was a tenant @ Rs. 2,000/- per month.
The threshold of Rs. 3,500/- is therefore, not attracted in the present case.
48. Whether the Defendant is taken as a tenant or as an unauthorised
occupant, upon service of the Legal Notice dated 06.12.2024, he has been
rightly held liable to vacate the premises.
49. In the same context, it has been rightly observed by the learned
District Judge that the Eviction Petition under DRC Act, was disposed of
RFA 862/2026 Page 11 of 12
Signature Not Verified
Signed By:VIKAS
ARORA
Signing Date:31.08.2026
13:09:36
since the suit property did not come within the purview of the DRC Act, and
was permitted to be withdrawn with liberty to file afresh. The bar of Order II
Rule 2 CPC was therefore not attracted, and the contention of the Appellant
in this regard, is misconceived.
50. It is pertinent to observe that the Written Statement of the Appellant
was not taken on record, and the Order in that regard attained finality,
CM(M) No. 790/2026 preferred in this Court, having been withdrawn on
10.04.2026.
Conclusion:
51. The Appellant has not been able to establish any right or title to
continue in the suit property. The Suit of the Plaintiff for possession has
been rightly decreed, and there is no infirmity in the impugned Judgment.
52. The Appeal is without merit and is hereby, dismissed . Pending
Application(s), if any, are also disposed of.
(NEENA BANSAL KRISHNA)
JUDGE
AUGUST, 19, 2026/RS
RFA 862/2026 Page 12 of 12
Signature Not Verified
Signed By:VIKAS
ARORA
Signing Date:31.08.2026
13:09:36