T.R. SUPREME COURT
- Law Office
Basis: 2015/15795
Decision: 2016/7531
Decision Date: 28.06.2016
CANCELLATION OF THE DEED AND REGISTRATION REQUEST – THE CASE IS A CASE WITH A REQUEST OF REGISTRATION AND CANCELLATION OF OWNERSHIP AND IS NOT ONE OF THE CASES THAT NEED TO BE TRANSFERRED TO THE CADASTRE COURT – THE COURT OF JURISDICTION TO RESOLUTION OF DISPUTES
SUMMARY: The lawsuit is a lawsuit for the cancellation of the title deed and registration for the property, and it is not one of the lawsuits that should be transferred to the cadastral court. Therefore, the court in charge of resolving the dispute is the … 1. Civil Court of First Instance. Pursuant to Articles 21 and 22 of the HMK… 1. Civil Court of First Instance had to be determined as the place of jurisdiction.
(6831 S. K. m. 2) (3402 S. K. m. 22, 27, 41) (6100 S. K. m. 21, 22) (Regulation on the Procedures and Principles to be Followed in Re-arranging the Cadastre Maps and Making the Necessary Corrections in the Land Registry Art. 9)
Litigation and Decision: In the lawsuit filed between the parties regarding the immovable law, due to the decision of non-jurisdiction by the 1. Civil Court of First Instance and the Cadastre, all the documents in the file sent to determine the place of jurisdiction were examined and it was considered necessary:
In summary, the plaintiff’s attorney in the petition; Claiming that the immovable parcel numbered 1256 in the village of … … is registered in the title deed in the name of the defendants, and that during the cadastral works carried out in 1993, 2271 m² of the immovable property in question was taken out of its name pursuant to Article 2/B of the Law no. sued.
… 1. The Civil Court of First Instance has given a decision of non-jurisdiction on the grounds that the cadastral court is in charge, since a report was drawn up as the defendant in accordance with Article 22/2-a of the Law No.
… The Cadastre Court, on the other hand, ruled for lack of jurisdiction on the grounds that the case is about property and the civil court of first instance is in charge.
27/1 of the Cadastre Law No. 3402. “The duties of these courts are terminated on the date when the cadastral record is drawn up for the immovable property regarding the cadastre-related and not yet finalized immovable property pending in the local law courts, and the files of the cases are transferred to the court ex officio.” In order for the provision to be applied, the case in the general court must contain a dispute that will fall within the scope of the cadastral activity.
Pursuant to Article 22/2-a of Law No. 3402, the purpose of the implementation cadastre is “Relating to land registry, cadastre or amendment transactions; re-arranging the cadastral maps that have lost their application quality in order to eliminate errors arising from limitations, measurements, drawings and calculations, are insufficient for technical reasons, are found to be deficient or do not show the boundaries on the ground in accordance with reality, and make the necessary corrections in the land registry. As can be seen, the purpose and scope of the implementation cadastre is to eliminate the technical errors related to the immovable boundaries in the cadastral maps. In that case, due to the implementation cadastre, the cases that can be transferred from the general courts are related to the border dispute; In other words, at the end of the final decision to be made, it is imperative that the boundaries and/or surface areas of the immovables in the layout map change. As a matter of fact, in article 9/a of the Regulation of Article 22/2-a (Regulation on the Procedures and Principles to be Complied with for the Rearrangement of Cadastre Maps and Making Necessary Corrections in the Land Registry), the cases that must be transferred from the general courts are explained as “frontier or area related” cases.
The judgment rendered as a result of the property lawsuit filed in the general court does not change the cadastral boundaries (diameters) of the immovables. For this reason, the title deed cancellation and registration cases regarding the property are not among the cases that should be transferred to the cadastral court due to the implementation cadastre.
The cases that should be transferred within the scope of the implementation cadastre, “Deed cancellation and registration cases with the request to change the joint border”, “Laws filed based on Article 41 of the Cadastre Law”, “Cases for the correction of the area written in the land registry” and “22/1 of the Law No. 3402. Lawsuits arising from the repeated cadastre within the scope of the article.
In the concrete case, the lawsuit is a lawsuit for the cancellation of title deed and registration for the property, and it is not one of the lawsuits that should be transferred to the cadastral court. Therefore, the court in charge of resolving the dispute is the … 1. Civil Court of First Instance.
Conclusion: For the reasons explained above; Pursuant to Articles 21 and 22 of the HMK… It was unanimously decided on 28.06.2016 that the 1st Civil Court of First Instance be DETERMINED AS THE JUDICIAL PLACE.
