Appellate Division
Aziz Ara Rahman v Rajdhani Unnayan Kartipakkha (RAJUK) and others
Civil Appeal 128/2016 · Decided 6 December 2023
The appellant, to whom RAJUK had allotted a plot at Gulshan, Dhaka in 1995, filed a writ petition seeking delivery of possession and execution of a lease deed, as the plot was occupied by a developer engaged by respondent No. 5. Respondent No. 5, who claimed the land by purchase, had earlier filed two writ petitions which were discharged, and the Appellate Division dismissed his leave petitions, finding that the plot was not in C.S. Plot No. 268 and that this plot had not been released from acquisition. The High Court Division nonetheless discharged the appellant's Rule because respondent No. 5's title suit was pending. The Appellate Division allowed the appeal, holding that fresh consideration of respondent No. 5's title was barred by res judicata, that a previous decision after full contest, including in a writ petition, binds a later suit, and that the judgment violated article 111 of the Constitution. Respondents Nos. 1 to 4 were directed to hand over possession within 60 days and complete the deeds.
- Q1
Whether the High Court Division could refuse relief in a writ petition because a title suit was pending, when earlier writ petitions between the same parties had found that respondent No. 5 had no right to the plot.
- Q2
Whether a decision in an earlier writ petition operates as res judicata in a subsequent suit.
- Q3
Whether the High Court Division's judgment contravened article 111 of the Constitution by disregarding the Appellate Division's findings.
- Any previous decision on a matter in controversy, including one in a writ petition, decided after full contest or after affording a fair opportunity to prove the case, operates as res judicata in a subsequent regular suit.
- Fresh consideration of respondent No. 5's title to the disputed plot, already decided against him in Writ Petitions Nos. 11099 of 2006 and 3030 of 2005, was barred by the principle of res judicata.
- As the land had been acquired and never released from acquisition, respondent No. 5 was no better than a trespasser, and the appellant, as allottee from RAJUK, acquired a legitimate right and title.
- Under article 111 of the Constitution the law declared by the Appellate Division binds the High Court Division, and disregarding its finding that respondent No. 5 had no right and title in the plot violated that article.
any previous decision on a matter in controversy in a legal proceeding including writ petition decided after full contest by the parties or after affording fair opportunity to the parties to prove their case will operate as res judicata in a subsequent regular suit.
In the court’s own words.
Civil Appeal 128/2016, as published by the Supreme Court of Bangladesh. 19 pages, with paragraph numbers for citing.
1IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
Present:
Mr. Justice Obaidul Hassan, Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL APPEAL NO.128 OF 2016
2(From the judgment and decree dated 15.02.2011 passed by the High Court Division in Writ petition No.7817 of 2009). Mrs. Aziz Ara Rahman ……..….Appellant
-Versus-
3Rajdhani Unnayan Kartipakkha (RAJUK) .…..….Respondents and others For the appellant : Mr. Kamal-Ul-Alam, senior Advocate with
Ms. Shahana Akther, Advocate, instructed
by Mr. Syed Mahbubor Rahman,
Advocate-on-Record.
4For respondents : Mr. Md. Imam Hasan, Advocate, No.1-4 instructed by Mr. Mohammad Ali Azam,
Advocate-on-Record.
5For the respondent : Not represented. No. 5 Date of hearing : The 5th day of December, 2023 Date of judgment : The 6th day of December, 2023
JUDGMENT
6Obaidul Hassan, C.J. This Civil Appeal by leave granting order dated 24.01.2016 in Civil Petition for Leave to Appeal No.1354 of 2011 is directed against the judgment and order dated 15.02.2011 passed by the High Court Division in Writ Petition No.7817 of 2009 discharging the Rule.
7The relevant facts necessary for disposal of this Civil Appeal are, in a nutshell, that the appellant as writ petitioner filed Writ Petition No.7817 of 2009 before the High Court Division seeking
=2=
8direction upon the writ respondents to deliver physical possession of Plot No.5, Road No.29, Gulshan Residential Area, Dhaka to the writ petitioner-appellant upon evicting illegal occupant therefrom and to execute and register the lease deed in respect of the said plot in favour of the writ petitioner-appellant.
9The appellant filed the Writ Petition contending, inter alia, that she got allotment of the aforesaid plot by Rajdhani Unnayan Kartripakkha (RAJUK), which was communicated to her vide Memo dated 16.11.1995. Subsequently, on payment of the entire consideration money to the tune of Tk.36,87,428.00 (Taka Thirty Six Lac Eighty Seven Thousand Four Hundred Twenty Eight only) within the stipulated time the appellant applied for handing over physical possession of the said allotted plot in her favour on 27.09.2004, whereupon the concerned officer of RAJUK when went to the said plot for handing over physical possession of the same to the appellant it was found that a developer firm namely Mega Builders engaged by writ-respondent No.5 Shamsher Ali Miah had been illegally possessing the plot and making illegal construction without obtaining any approved plan from RAJUK. Thereafter, on 03.11.2004 an enquiry committee was constituted by RAJUK to enquire into the matter and that the said enquiry committee by a notice dated 29.11.2004 asked the writ-respondent No.5 to appear at a hearing before the enquiry committee on 03.01.2005 and to submit written statement with relevant papers. Although the writ
=3=
10respondent No.5 primarily appeared before the enquiry committee and submitted a written statement with some papers but without waiting for the result of the enquiry and decision of RAJUK thereon filed another Writ Petition being No.3030 of 2005 on 07.05.2005 in the High Court Division challenging the validity of the said notice dated 29.11.2004 and obtained a Rule Nisi and an interim order of injunction while the appellant got herself added as a respondent in Writ Petition No.3030 of 2005 and subsequently on 04.07.2005 the said order of injunction was stayed by this Division in Civil Petition for Leave to Appeal No.704 of 2009. Later on, the writ respondent No.5 filed another Writ Petition being No.11099 of 2006 on 16.11.2006 before the High Court Division praying for declaration that the letter of allotment dated 16.11.1995 issued by RAJUK in favour of appellant was without lawful authority and of no legal effect and obtained a Rule Nisi. The appellant as well as RAJUK opposed both the Rules by filing Affidavit-in-Opposition. Upon hearing both the Writ Petitions by a Division Bench of the High Court Division both the Rules were discharged vide two separate judgments dated 05.11.2007 against which the respondent No.5 filed Civil Petition for Leave to Appeal No.713 of 2007 and Civil Petition for Leave to Appeal No.1331 of 2008 before this Division. Upon hearing both the aforesaid Civil Petitions for Leave to Appeal were dismissed by this Division vide judgments dated 27.11.2007 and 25.05.2009 respectively. Thereafter the writ-petitioner-appellant
=4=
11made several requests and representations to writ-respondents No.2-4 for handing over physical possession of the aforesaid allotted plot and to execute lease deed in her favour, but did not get any response. Lastly, on 05.08.2009 the appellant made a representation in writing to the Chairman, RAJUK annexing thereto the aforementioned judgments requesting him to take necessary steps for handing over physical possession of the allotted plot to her upon evicting the illegal occupants therefrom and also to execute and register the lease deed in her favour. But the respondents did not take any step in this regard, nor make any response thereto. Hence the writ petitioner-appellant was constrained to file Writ Petition No.7817 of 2009 before the High Court Division on 17.12.2009 and obtained Rule and an order of injunction upon the writ respondents from transferring the disputed plot and from changing the nature and character of the property for a period of 03(three) months. The said order of injunction was extended from time to time and lastly on 15.02.2010 it was extended till disposal of the Rule.
12The writ-respondent No.1 herein also respondent No.1- RAJUK contested the said Writ Petition by filing an Affidavit-inopposition and contended that there are 10 apartments including parking space in the ground floor of the disputed plot which is occupied by the respondent and others and unless all the occupants of the flat are evicted therefrom, RAJUK will get no scope to hand over the vacant possession of the land by executing lease deed.
=5=
13On the other hand, the writ-respondent No.5 also respondent No.5 herein filed affidavit-in-opposition contending, inter alia, that the land of disputed plot belonged to him which he purchased by four registered deeds dated 06.06.1980 and got mutated his name in the said land and paid up to date rent. The Dhaka City Survey was prepared without any objection by erstwhile DIT now RAJUK in the name of the respondent No.5 in Khatian No.1649 which is final proof of his ownership. Subsequently the respondent No.5 entered into an agreement with a developer company for construction of a residential building in accordance with the plan approved by RAJUK. Thereafter, when dispute arose he filed two Writ Petitions being No.3030 of 2005 and 11099 of 2006 and both the Rules issued in those Writ Petitions had been discharged on the ground of maintainability.
14Being aggrieved he filed Civil Petitions for Leave to Appeal No.713 of 2007 and 1331 of 2008 before this Division which were also dismissed. Subsequently, he filed Title Suit No.373 of 2005 praying for declaration of title to the extent of .1020 acres of land appertaining to C.S. Plot No.268. Therefore, the present Writ Petition filed by the appellant is not maintainable during the pendency of the said suit.
15Upon hearing the High Court Division discharged the Rule vide impugned judgment and order dated 15.02.2011. On being aggrieved and dissatisfied with the judgment and order dated
=6=
1615.02.2011 passed by the High Court Division in Writ Petition No.7817 of 2009 the appellant filed Civil Petition for Leave to Appeal No.1354 of 2011 before this Division. Upon hearing on 24.01.2016, this Division granted leave and hence the instant Civil Appeal.
17Mr. Kamal-Ul-Alam, learned senior Counsel appearing on behalf of the appellant contends that the judgments and orders of the High Court Division in Writ Petitions No.3030 of 2005 and 11099 of 2006 between the self same parties as affirmed by the judgments and orders of this Division in Civil Petitions for Leave to Appeal Nos.713 of 2007 and 1331 of 2008 respectively holding that the disputed plot allotted to the appellant is not situated in C.S. and S.A. Plot No.268 as claimed by the respondent No.5 and the said plot has not been released from acquisition made in L.A. Case No.10/63-64 and as such the High Court Division on the face of the aforesaid decisions of the Apex Court was in breach of Article 111 of the Constitution in passing the impugned judgment and order discharging the Rule issued in Writ Petition No.7817 of 2009. The learned senior Counsel contends next that the High Court Division was wholly wrong in law and acted beyond its jurisdiction in not giving effect to the binding force of the earlier decisions of the Appellate Division in Civil Petitions for Leave to Appeal No.713 of 2007 and 1331 of 2008 regarding the disputed plot of the case in hand holding that the aforesaid decisions of the Appellate Division
=7=
18although has got binding force but the fact of pendency of Title Suit No.373 of 2005 filed on 03.09.2005 by the respondent No.5 was not brought to the notice of the Appellate Division and as such the impugned judgment is liable to be set aside. The learned senior Counsel urges next that on the face of the decisions and findings in the Writ Petition Nos.3030 of 2005 and Writ Petition No.11099 of 2006 as affirmed by the Appellate Division in Civil Petition for Leave to Appeal No.713 of 2007 and Civil Petition for Leave to Appeal No.1331 of 2008 to the effect that C.S. Plot No.268 being a requisitioned and acquisitioned land the occupant therein will be treated as a trespasser under the principle of law enunciated in 9 BLC(AD)56, and as such the High Court Division was wholly wrong in law in passing the impugned judgment and order discharging the Rule holding that the respondent No.5 is in possession of plot No.268 and as such direction for delivery of possession of the disputed C.S. Plot No.268 to writ-petitioner-appellant cannot be given unless the dispute is settled in Title Suit No.373 of 2005. The learned senior Counsel contends, in fine, that the High Court Division was wrong in law in discharging the Rule on total misconception of law as to applicability of the principle of res judicata in writ proceedings inasmuch as it is settled law that a decision in earlier writ petitions on the selfsame issues between the same parties operates as res judicata in subsequent proceedings either in suits or writ proceedings and a question decided in an
=8=
19earlier writ petition disposed of on merit cannot be reagitated in a subsequent suit between the same parties on the principle of res judicata.
20On the other hand, Mr. Md. Imam Hasan, learned Counsel appearing for the respondents No.1-4 echoing with the same voice of the learned Counsel for the appellant submits that RAJUK is the original owner of the disputed plot by way of acquisition and the appellant took allotment of the said plot from RAJUK in accordance with law and RAJUK has no objection if the possession of the plot in question is handed over to the appellant.
21However, none appears on behalf of the respondent No.5 to contest the appeal.
22We have considered the submissions of the learned Counsel for both the sides, perused the impugned judgment and order dated 15.02.2011 passed by the High Court Division in Writ Petition No.7817 of 2009 as well as other materials on record.
23It is undisputed that earlier the respondent No.5 filed Writ Petitions No.3030 of 2005 and 11099 of 2006 before the High Court Division regarding the allotment of the disputed plot in favour of the appellant but upon hearing both the Rules were discharged vide judgments and orders dated 05.11.2007. Against the judgment and order passed in Writ Petition No.3030 of 2005 the respondent No.5 filed Civil Petition for Leave to Appeal No.713 of 2007 before this Division which was dismissed upon hearing on 27.11.2007.
=9=
24Subsequently, while the respondent No.5 filed Civil Petition for Leave to Appeal No.1331 of 2008 before this Division challenging the judgment and order dated 05.11.2007 passed by the High Court Division in Writ Petition No.11099 of 2006 which was also dismissed on 25.05.2009.
25While discharging the Rule in Writ Petition No.11099 of 2006 the High Court Division observed the following:
26“It appears from the writ petition that the petitioner
27himself admitted that the land was handed over to the
28requiring body and in such circumstances the petitioner
29cannot claim the land by way of right and admittedly
30the said land in question was requisitioned in
31accordance with law. So the allegation of discrimination
32does not apply in the instant case.
33In view of the decisions as referred to and the provision
34of law specially the Town Improvement Act 1953 and in
35view of the notification dated 30.06.2001 published in
36the Bangladesh Gazette on 02.08.2001 it appears that the
37land claimed by the petitioner is still a requisitioned
38property and in such circumstances the petitioner has no
39locus standi to challenge the impugned allotment made
40by the requiring body in accordance with law. Hence we
41find no merit in this Rule.”
(underlines supplied by us)
42Again, the High Court Division observed in the judgment dated 05.11.2007 passed in the Writ Petition No.3030 of 2005 as under:
=10=
43“Furthermore the petitioner in the instant case miserably failed to show the nexus in between the plot No.5, Road No.29, Gulshan Model Town and C.S. Plot No.268 in any manner. Furthermore the petitioner categorically admits the said land was requisitioned under L.A. Case as evident in Annexure-H to the writ petition. He also failed to show any document that the said plot No.268 was released from requisition by the authority under any law. From a plain comparison of Annexure- H to the writ petition with Annexure-I to the affidavit-inopposition it appears that only 14.68 acres of land were released out of 22.50 acres of land in 20 plots, but no land of plots namely 268, 267 or 270 has been released as per the gazette notification as evident in Annexure-I and as such the plot No.268, 267, 270 are still under requisition. Also the respondent No.2 annexed two inquiry slip wherein it transpires that the entire C.S. Plot No.268 has been requisitioned and the admitted predecessor-in-interest of the petitioner Hazera Khatun took entire compensation money as per the award register maintained by the authority and the same is under direct control of Kartipakkhya. In a case reported in 9 BLC(AD)56 (Abdul Huq vs. Government of the People’s Republic of Bangladesh represented by the Secretary, Ministry of Land and others) their Lordships observed as follows:
44“Though the petitioners have been alleging to be
45in possession of the land but their possession are
46no better than that of trespassers as upon
47requisition of the lands, the authority has taken
=11=
over the possession from the original owners and
handed over to the requiring body that is RAJUK.”
Since none of the plots namely C.S. Plots No.267, 268 or
270 has ever been released from requisition in any
manner and since the impugned order challenged by the
petitioner is mere a notice of appearance for submitting
some papers to resolve a dispute relating to title and
description and since the petitioner appeared and
submitted two written replies therein, the petitioner
cannot get any relief in this Rule as prayed for.”
(underlines supplied by us)
48More importantly, this Division while dismissing the Civil Petition for Leave to Appeal No.1331 of 2008 filed by the respondent No.5 against the judgment and order dated 05.11.2007 passed by the High Court Division in Writ Petition No.11099 of 2006 observed the following:
“We have perused the leave petition as well as the
judgment and order dated 05.11.2007 passed in Writ
Petition No.3030 of 2005 as well as the Annexures-3(C), 4
and 5 at pages 331, 332 and 335 of the paper book and
having regard to the discussion made in the impugned
judgment by the High Court Division and the
submissions of the learned Advocate for the leave-
petitioner we are of the view that the Plot No.5 of Road
No.29 of Gulshan Residential Area is not situated in C.S.
and S.A. Plot No.268 as claimed by the leave petitioner
and the said plot No.268 has not been released from the
acquisition made in L.A. Case No.10/63-64 as claimed
=12=
by the leave-petitioner. Accordingly we do not find any
merit in the leave petition.”
(underlines supplied by us)
49It is transparent from the above that the High Court Division in Writ Petitions No.11099 of 2006 and 3030 of 2005 found that plot No.5, Road No.29, Gulshan Model Town is not situated in C.S. Plot No.268 and none of the plots namely C.S. Plots No.267, 268 or 270 has ever been released from requisition in any manner. Subsequently, this Division upon an elaborate discussion firmly established the above findings of the High Court Division in Civil Petition for leave to Appeal No.1331 of 2008 while the Civil Petition for Leave to Appeal No.713 of 2007 filed by the respondent No.5 against the judgment passed in Writ Petition No.3030 of 2005 was also dismissed by this Division. In view of the observations made by this Division in Civil Petition for leave to Appeal No.1331 of 2008 it is by now finally settled that respondent No.5 cannot claim any valid right and claim over the land of disputed plot of the case in hand while the respondent No.1 became the owner of the land of disputed plot by way of acquisition. Although in the present case the respondent No.5 claims to be in possession of the disputed plot in view of the settled legal proposition the status of the respondent No.5 in the disputed plot is no better than a mere trespasser.
50It is the case of the appellant that she took the allotment of the disputed plot from the respondent No.1, RAJUK vide memo dated
=13=
5116.11.1995. Now the pertinent question is that whether the appellant has acquired a valid right and title of the disputed plot. Since it has already been settled by this Division that the land of disputed plot was acquired by RAJUK in accordance with law and the said land was not delisted from the acquisition, it is our considered view that the appellant having taken allotment of the same from RAJUK has acquired a legitimate right and title over it.
52There is another facet of the case that is the respondent No.5 instituted Title Suit No.373 of 2005 impleading the appellant as well as respondent No.1 along with others seeking declaration of title in the land of the disputed plot. Then a pertinent question arises whether the principle of res judicata is applicable in Writ Petition. It transpires from the record that while discharging the Rule issued in Writ Petition No.7817 of 2009 the High Court Division observed that the writ petition is not maintainable since a title suit is pending over the title of the land in question. The learned Counsel for the appellant strenuously claims that since High Court Division has already made decision regarding the right and title of the respondent No.5 in Writ Petitions No.11099 of 2006 and 3030 of 2005 filed by him, the same issue cannot be reopened in the Writ Petition No.7817 of 2009 inasmuch as it is barred by the principle of res judicata. In this regard, it is our considered view that the High Court Division committed illegality in passing the impugned judgment without taking into consideration that earlier in Writ Petitions
=14=
53No.11099 of 2006 and 3030 of 2005 the High Court Division found that the respondent No.5 has no right and title over the disputed plot. But in the case in hand, the High Court Division while dealing with the Writ Petition filed by the appellant held relying on the claim of the respondent No.5 to the effect that since the case involves the disputed question of facts as to the title over the disputed plot the same should be settled in Title Suit No.373 of 2005 filed by the respondent No.5 and as such the Writ Petition is not maintainable. The above findings of the High Court Division is absolutely unwarranted inasmuch as the fresh consideration of title of the respondent No.5 in disputed plot which has already been decided earlier by the High Court Division in Writ Petitions No.11099 of 2006 and 3030 of 2005 is barred by the principle of res judicata.
54The rationale behind the principle of res judicata has been elucidated by the Indian Supreme Court in the case of State of Karnataka and others vs. All India Manufacturers Organization and others, AIR 2006 SC 1846. The relevant portion is extracted below:
55“32. res judicata is a doctrine based on the larger public
56interest and is founded on two grounds: one being the
57maxim nemo debet bis vexari pro una et eadem causa (P.
58Ramanatha Aiyer, Advanced Law Lexicon (Vol.3 3rd
59Edn., 2005) at page 3170.) (“No one ought to be twice
60vexed for one and the same cause”) and second, public
61policy that there ought to be an end to the same
=15=
litigation (Mulla, Code of Civil Procedure (Vol.1, 15th
Edn., 1995) at page 94. It is well settled that Section 11 of
the Civil Procedure Code, 1908 (hereinafter “the CPC”)
is not the foundation of the principle of res judicata, but
merely statutory recognition thereof and hence, the
Section is not to be considered exhaustive of the general
principle of law. (see Kalipada De v. Dwijapada Das)
The main purpose of the doctrine is that once a matter
has been determined in a former proceeding, it should
not be open to parties to re-agitate the matter again and
again. Section 11 of the CPC recognises this principle
and forbids a court from trying any suit or issue, which
is res judicata, recognising both ‘cause of action estoppel’
and ‘issue estoppel’.”
(underlines supplied by us)
62At this juncture, a plausible question albeit carrying a great importance peeps into our mind whether the principle of res judicata is applicable in case of a subsequent suit. In this regard, it has been observed by the Indian Supreme Court in oft-cited case of Gulab Gulabchand Chhotalal Parikh vs. State of Bombay AIR 1965 SC 1153 that-
“73……………..the provisions of section 11 CPC are not
exhaustive with respect to an earlier decision operating
as res judicata between the same parties on the same
matter in controversy in a subsequent regular suit and
that on the general principle of res judicata, any previous
decision on a matter in controversy, decided after full
contest or after affording fair opportunity to the parties
to prove their case by a Court competent to decide it will
=16=
63operate as res judicata in a subsequent regular suit.
64……………………..The nature of the former proceeding is
65immaterial.”
(underlines supplied by us)
66It appears from the aforesaid decision that any previous decision on a matter in controversy in a legal proceeding including writ petition decided after full contest by the parties or after affording fair opportunity to the parties to prove their case will operate as res judicata in a subsequent regular suit. Therefore, in view of the above decision of the Indian Supreme Court we hold that since the right and title of the respondent No.5 in the disputed land has not been found by the High Court Division in Writ Petitions No.11099 of 2006 and 3030 of 2005 filed at the instance of the respondent No.5, subsequent suit being No.373 of 2005 instituted by the respondent No.5 for declaration of title so far as it relates to the disputed plot claimed by the appellant in Writ Petition No.7817 of 2009 is barred by the principle of res judicata.
67Be that as it may, it transpires from the additional paper book filed by the appellant that the defendant No.3-appellant filed an application for rejection of plaint of Title Suit No.373 of 2005 under Order VII Rule 11 of the Code of Civil Procedure, 1908, but the trial Court upon hearing on 28.02.2012 rejected the said application. Challenging the aforesaid order dated 28.02.2012 the appellant filed Civil Revision No.1516 of 2012 before the High Court Division and
=17=
68upon hearing the High Court Division on 15.05.2018 set aside the order 28.02.2012 passed by the trial Court and allowed the application for rejection of plaint of Title Suit No.373 of 2005.
69While arguing the learned senior Counsel for the appellant emphatically claims that in Civil Petition for Leave to Appeal No.1331 of 2008 this Division held that the disputed plot is not situated in C.S. and S.A. Plot No.268 as claimed by the respondent No.5 and the said plot has not been released from acquisition made in L.A. Case No.10/63-64 and as such the High Court Division on the face of the aforesaid decision of the Apex Court was in breach of Article 111 of the Constitution. To address the said issue we need to advert to the provisions of Article 111 of the Constitution of Bangladesh which enunciates as follows:
70“Article 111. The law declared by the Appellate Division
71shall be binding on the High Court Division and the law
72declared by either division of the Supreme Court shall
73be binding on all courts subordinate to it.”
74In the case of Secretary, Posts and Telecommunications Division, Ministry of Posts and another vs. Shudangshu Shekhar Bhadra and others reported in 25 ALR(AD)(2022) 19 at paragraph 22 this Division very eloquently stated that:
75“……………the provision of Article 111 of the Constitution
76enjoining upon all courts below to obey the law laid
77down by this Court, judicial discipline requires that the
78High Court Division should follow the decision of the
=18=
79Appellate Division and that it is necessary for the lower
80tiers of courts to accept the decision of the higher tiers as
81a binding precedent.
(underlines supplied)
82In view of above, it is quite evident that the law declared by this Division regarding a subject matter is always binding on the High Court Division as well as other subordinate Courts. Since this Division in Civil Petition for Leave to Appeal No.1331 of 2008 has already categorically found that the respondent No.5 has no right and title in the disputed plot the impugned judgment passed by the High Court Division violates the provisions of Article 111 of the Constitution.
83In the light of the aforesaid reasons as well as an elaborate discussion regarding the factual and legal aspects of the case the impugned judgment and order dated 15.02.2011 passed by the High Court Division in Writ Petition No.7817 of 2009 warrants interference by this Division. Therefore, we find merit in the submissions of the learned senior Counsel for the appellant. In the prevailing circumstances, the impugned judgment and order of the High Court Division cannot stand at all in the eye of law.
84Accordingly, the instant Civil Appeal is allowed.
85The judgment and order dated 15.02.2011 passed by the High Court Division in Writ Petition No.7817 of 2009 is set aside.
=19=
86The respondents No.1-4 are hereby directed to hand over the possession of plot No.5, Road No.29, Gulshan Residential Area, Dhaka within 60(sixty) days in favour of the present appellant from the date of receipt of this order.
87The respondents No.1-4 are also directed to complete all legal formalities including execution of all legal deeds and registration in favour of the appellant in accordance with law.
C.J.
J.
J.
J.
J.
88The 06th day of December, 2023 RRO/Total words- 4,540
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