T.R. SUPREME COURT
- Criminal Chamber
Basis: 2015/2549
Decision: 2016/7501
Decision Date: 27.06.2016
ACTION FOR ANNOUNCEMENT OF REGISTRATION AND CANCELLATION – LIABILITY ARISING FROM KEEPING THE REGISTRATION REGISTRY – REGISTRATION ON BEHALF OF THE HEIRS BASED ON THE COURT DECISION – DUE DUE TO THE APPOINTMENT REGARDING THE APPLICANT IS THE APPOINTED HERITAGE.
SUMMARY: After the decision of the Supreme Court of Appeals, the plaintiff filed a lawsuit for the enforcement of the will combined with the file in hand. In the combined case, the plaintiff, based on the will, demanded that the enforcement decision of the Civil Court of First Instance numbered … be considered valid and enforced also for parcels no. Since the parcels numbered 823 and 827 are determined and registered by the cadastral court on behalf of the legal heirs who are obliged to fulfill the will, in other words, since the registration in the name of the heirs is based on the court decision, there is no possibility of transfer to the land registry by obtaining a document stating that the plaintiff is the appointed heir. In that case, while the court should examine the merits of the case in this case and make a decision based on the outcome of the compensation case by waiting for the result of this case, the rejection of the original and the combined file case due to illegal reasons was not considered correct and necessitated reversal.
(4721 S. K. Art. 1007)
Litigation: After the trial of the verdict established at the end of the hearing between the parties was requested by the attorney of the plaintiff …, the appeal petition, which was understood to be in time, was accepted and the hearing request was rejected out of expense, the file was examined and the necessary was considered:
Decision: The attorney of the plaintiff … is the sole heir of the plaintiff, that he is the heir of the deceased deceased … that he left half of the inheritance share to his wife … with a will with a daily will of 29.09.1955 dated …, which was drawn up in the notary of …, the registration of the immovable property subject to the lawsuit If the testament is disregarded and registered in the name of the defendants by declaring that fewer shares are registered in the name of … Based on the will of … … and the agreements between the plaintiff and the plaintiff, it was decided to register the 50400/6585600 shares, which are the portion to be raised, in the land registry in the name of the plaintiff, due to the change of hands of the title deeds. If this request is not found appropriate, the decision date of the Land Registry Court Declaring that the plaintiff must pay compensation on behalf of the State due to the failure to not duly notify the owners or heirs in his possession, and the fraudulent registration of the title deed by issuing a legally groundless annotation, the administration and the prosecutor’s office to which the application was made, and not doing their part, and that the plaintiff is the rightful owner. to the plaintiff jointly and severally, together with the legal interest to be accrued from the date of notification of the situation, to the fair value of the parts of the immovables subject to the lawsuit, which fall to the plaintiff’s share, in return for the damage suffered by the plaintiff, As the defendant and other defendants, who caused the plaintiff’s loss until the date of the lawsuit, due to the inability to carry out the work and transactions that need to be done, the amounts falling to the plaintiff’s share and the plaintiff’s income from the immovables. He requested that 1,000,00.-TL be collected, jointly and severally, for the benefit and the profit he was deprived of, with the legal interest to be accrued from the date of notification to the defendants.
The defendant’s attorney argued that the case had nothing to do with the case, and that the case was dismissed due to hostility, statute of limitations, a statute of limitations, and final judgment.
The defendant … … the representative of the estate …, that they are aware of the fact that there are various contracts between the plaintiff … Despite the fact that he repeated his written statements and consents in the file no. He also stated that they thought that the plaintiff’s request to keep his shares in his possession, the portion to be increased, in return for his work and expenses, was an indication of the plaintiff’s goodwill.
A lawsuit petition has been duly served on the defendant … … the representative of his estate.
vape was not given.
The court decided that the plaintiff’s case be accepted, and that the 246,955,83.-TL damage subject to the lawsuit be paid to the plaintiff with the legal interest from the date of the lawsuit, together with the collection from the defendants and the representative of the inheritance company, jointly and severally. company’s representative … was appealed by the 8th Civil Chamber of the Supreme Court of Appeals, with the decision dated 26/03/2013 and numbered ….
In summary, in the annulment decision that was complied with; “According to the scope of the file and the evidence collected, the claim was finalized but not implemented in the Land Registry Court, and the cancellation and registration of the will-based title deed, if not, there was a claim for compensation, the plaintiff party was asked twice for approval due to the failure to implement the finalized court decision. Explaining that they could not get any results from their demands, by explaining that they have the right to demand compensation from … due to the negligence of these institutions, the court made the claim of the plaintiff party in the correction petition, in which he deposited the fee dated 29.12.2011, as compensation and price, and its value was 246,955,83.-TL. It was decided in writing, taking into account the increase in Among the documents in the file, it is seen that … his wife … … also has a share of 33600/6585600, … his daughter was born in 1323 … … died on 9.11.1984 and his only heir remained … his daughter … was born in 1926 … In the examination of the decision of the Civil Court of Peace dated 17.5.1983 and no. By the court in the case of the opening of a will brought against the defendants … their heirs against 8 persons … In the file dated 2.7.1981 and numbered 1981/302 of the 2nd Civil Court of First Instance, it was announced that the rejected decision regarding the annulment of the will was approved and finalized by the 2nd Civil Chamber of the Supreme Court of Appeals. it has been decided to issue a certificate of inheritance to the heirs and to leave the estate to the heirs temporarily, According to this decision, it was seen that the registration was requested from the Land Registry Directorate, that it was stated in the land registry records that the title deed was registered according to the inheritance certificate by the Land Registry Office, … In the lawsuit filed by the plaintiff … against the other heirs of … on 10.12.1985 …’ After the rejection and finalization of the action for the annulment of the will, in which half of all the properties of the . . . Certificate of inheritance was given to the heirs who belonged to the company, their requests regarding the determination of the decision were rejected, the execution of the decision was decided on 17.05.1983, but the decision could not execute the decision, since the decision to register the immovables was not disclosed in the decision, the deed could not execute the decision, the only heir of …. The village of Halime, which was transferred from … … 31, 34, 62, 82, 101, 125, 126, 127, 137, 221, 236, 288, 495, 541, 542, 543, 546, 548, 549, 552 According to the will, half of the parcels numbered 615, 616, 695, 749, 759 and 796 are inherited by …, 1/2 of the remaining half share belongs to … as the heir, and …’s share must be 3/4. In this way, the court decided to delete the name of 25 pieces of real estate, for which registration was requested, from the title deeds and, in line with the expert report, to register 120 shares according to 192 shares to … daughters and 12 shares to other heirs in proportion to their shares. The legal basis for the claimant’s request from … is Article 1007 of the Turkish Civil Code No. 4721, in which the responsibility of the State for the damages arising from the keeping of the land registry is regulated, with regard to the State’s “responsibility arising from the keeping of the Land Registry”, the strict liability/ the rules regarding aggravated cause/aggravated objective liability/hazard liability shall be applied, in order to be able to talk about the responsibility of the State to which this clear provision of the law is the source, an unlawful act of the official in keeping the land registry and the existence of a causal link between this act and the harmful result, the act of the officer to do something or not. It does not matter whether it is in the nature of non-compliance and whether it is based on fault, and according to the evidence gathered from the court decisions on which the plaintiff party is based, in the file, the plaintiff’s voucher on the goods transferred from … …
Although it is understood that he has the right to inherit through the certificate of inheritance and the inheritance certificate, and the representative of the other heirs consented to this on behalf of the other heirs due to his mother … There is no explanation or provision regarding the parcel numbered immovables, there is no lawsuit filed by the plaintiff regarding these parcels later or a court decision was concluded in favor of the same parcels, and the decision of the Civil Court of First Instance dated 19.12.2009 and no. It cannot be thought that it will have consequences for or against, and in this case, it cannot be thought that the Land Registry Directorate, District Governor’s Office and the Public Prosecutor’s Office are responsible for the execution of the court decision not related to the parcels in question at the title deed. not, a Since there is no decision taken in favor of it, it is not correct to hold the estate of … … liable, and the court should dismiss the plaintiff’s case as a whole, but based on similar decisions, it is not correct to accept the case in writing with a justification that does not comply with the scope of the file.
After complying with the annulment decision, the court decided to apply the decision of the Civil Court of First Instance no. . . . After the lawsuit file he filed was combined with this file, it was decided to reject the original file and the combined lawsuit file, and the judgment was appealed by the plaintiff’s attorney.
According to the statement in the petition, the case; If the cancellation of the title deed is not possible, it is related to the claim for compensation for the damage in accordance with Article 1007 of the Civil Code.
In accordance with the decision of the 8th Civil Chamber of the Supreme Court of Appeals, dated 26/03/2013 and numbered …, the court rejected the original file case. Although it was decided to reject the case of the combined file on the grounds that the execution of a decision would not be possible, the court’s acceptance does not comply with the content of the file.
Namely; Although it was mentioned in the reversal decision of the 8th Civil Chamber of the Court of Cassation that the plaintiff’s case should be dismissed altogether, every case is evaluated in its current form, in accordance with the principle of the Court of Cassation, it was opened by the plaintiff regarding the plots numbered 823 and 827, which is the subject of the lawsuit, and in favor or against Considering the fact that there is no case that has been concluded, it is stated that the case should be rejected in its current form.
After the decision of the Supreme Court of Appeals, the plaintiff filed a lawsuit for the enforcement of the will combined with the file in hand. In the combined case, the plaintiff, based on the will, demanded that the enforcement decision of the Civil Court of First Instance numbered … be considered valid and enforced also for parcels no. Since the parcels numbered 823 and 827 are determined and registered by the cadastral court on behalf of the legal heirs who are obliged to fulfill the will, in other words, since the registration in the name of the heirs is based on the court decision, there is no possibility of transfer to the land registry by obtaining a document stating that the plaintiff is the appointed heir. In that case, while the court should examine the merits of the case in this case, and in terms of the compensation case filed pursuant to Article 1007 of the MK, a decision should be made according to the outcome by waiting for the result of this case, the rejection of the original and the combined file case on illegal grounds was not considered correct and it was not considered appropriate. required.
Conclusion: For the reasons explained above, it was unanimously decided on 27.06.2016 that the appeal of the plaintiff’s attorney be accepted, the judgment be OVERFINED and the appeal fee be refunded upon request.
