T.R. SUPREME COURT
- Law Office
Basis: 2016/3944
Decision: 2016/7541
Decision Date: 28.06.2016
ACTION FOR OBJECTION TO THE DETERMINATION OF CADASTRE – A REPORT SHOULD BE TAKEN FROM AGRICULTURAL ENGINEER IN CONSIDERATION WITH THE PURPOSE OF THE LAW AND ISSUED A DECISION ON ITS RESULT
SUMMARY: As to whether the immovable subject to the lawsuit is irrigated or dry agricultural land (According to the provisions of the second paragraph of Article 3/j of Law No. 5403 and the amended second paragraph of Article 10 of the Regulation on Limitation, Detection and Control of Immovable Property, irrigated agricultural land: in the growth phase of the cultivated plants. A report in accordance with the purpose of the law should be obtained from the agricultural engineer and a decision should be made within the framework of the result.
(6831 S. K. art. 17) (3402 S. K. art. 14)
Case and Decision: After the decision of the Supreme Court of Appeals to examine the verdict established at the end of the hearing of the case between the parties, the defendant and the internal defendants …, …, … and …, after the decision to accept the appeal petition, which was understood to be in time, the file was examined, the necessary was considered:
The plaintiff, with his petition dated 26/05/2008; In the cadastral works carried out in accordance with the provisions of the Law No. 3402 amended with the Law No. Claiming that the areas excluded from the border line are among the listed places, he requested that these immovables be registered in his name. During the land cadastre, parcels no. 134 on island 1 and 98 on island 101 are bushes, and parcels 95, 96, 97, 99, 100, 101, 102, 103 and 104 on island 101 are 4964.14 m², 715.31 m², 9652, respectively. Immovables with a surface area of .25 m², 4292.34 m², 8048.06 m², 7816.12 m², 4346.06 m², 9193.80 m², 11,282.75 m², 3154.66 m² and 3093.26 m², owner households become defendants. The cadastral record was prepared and sent to the court. As a result of the trial held by the court by including the minutes of possessions in the case, the case was accepted and the immovables numbered 134, 1, 101, 3, 95, 96, 97, 98, 99, 100, 101, 102, 103 and 104 were registered and registered in the title deed. judgment was rendered, the judgment was appealed by the defendant and the internal defendants …, …, … and ….
The case is related to the cadastre and objection to the cadastral determination.
In the place where the contested real estate is located, there are cadastral works that were carried out in accordance with the provisions of the 4th article of the Law No. 3402, amended by the Law No. 5304 and announced between 25/04/2008 – 26/05/2008.
The decision of the court is against the procedure and the law. Although the defendant relied on the land registry, the court did not apply the base land registry records. Block 101, parcels no. 95, 96, 97, 98, 99, 100, 101 and 102, where 1 parcel is covered with spruce type trees and partly beech hornbeam trees, meadow pasture grasses, bushy dwarf roses, scattered in places. It has been reported that spruce beech hornbeam, maple species, leafy and coniferous trees are covered with clearings, and parcels no. 103 and 104 on block 101 are meadows with spruce species and scattered beech hornbeam, maple dwarf trees. it is called openness and it is called in the green area on the country map, and it is also called an aerial photograph. As a result of the fact that there was a conflict due to the notification that there was vegetation on the immovables in the immovables, and the zoning, restoration and possession conditions of the immovables were not evaluated, and as a result of the lawsuit filed by the Administration in the vicinity of the parcel no. It is understood that instead of sending it to the land registry office to be finalized through ordinary means, it was decided to register the immovable as identification.
No judgment can be made based on expert reports that are not suitable for auditing, and incomplete research and examination.
For these reasons; All circulation and sketches, if any, of all the parcel minutes since the first formation of the base title deed record dated 1289 and numbered 1 based on by the defendants, bringing the minutes of all the parcels in which it has been revised, if it has not been revised, asking why it has not been revised, all the parcels to which the land registry is applied and the adjacent parcel minutes and bases, if they are the defendants, the case files , registration sketch, if any, bringing the minutes and bases of the neighboring parcels, showing the real estate subject to the lawsuit and its surroundings, and the original photocopy of the 1/5000 scaled land cadastral map, which was prepared for the first time in that place by graphic or photogrammetry method.
Examples of cadastral determination report of the light or near neighbor parcels, and all the deed and tax records applied to these parcels since the day they were first created, the oldest dated hometown map of the region and its base aerial photographs, and stereoscopic aerial photographs of 1985-1990 and based on these photographs. The original colored country maps produced by the cadastre are requested from the places where the report and map are found, with the help of an expert committee to be formed by an agricultural engineer, a map-cadastre (Geodesy and Photogrammetry) engineer or science employee and a graduate engineer or engineer who graduated from the soil department of agricultural faculties. After the application of the immovable property and its surroundings and determining the subject of the lawsuit in these documents, aerial photographs and maps are examined with a stereoscope and three-dimensionally, how the quality of the immovable is seen in these documents, when the zoning, restoration and possession begins. It should be determined that the cadastral map is completed with these documents. The map, which is arranged with the cadastral map by equalizing at the /5000 and 1/25000 scales, shows the location of the contested real estate, on the original colored country maps with the finalized cadastre and aerial photographs, by being applied on top of each other, including the neighboring and near-neighbor immovables. It contains detailed and scientific data from the expert committee, they will explain what its appearance is on the country maps and what the vegetation is. 17/2 of the flour. A report should be taken in which it is evaluated whether there is a clearness in the meaning of the law, the base land registry records and, if any, the sketches, the local experts and witnesses, as well as the minutes of the neighboring parcels, and the method should be applied to the ground as required. In case it is subject to change by evaluation, the area should be evaluated in accordance with Article 20/C of the Law No. 3402, and its scope should be determined exactly, the scope of the actual immovable or if it is not from the forest, it should be accepted that the excess amount was gained by trenching from the forest located at the border. It should also be investigated whether the title deed record has lost its legal value within the scope of Law No. 4785.
If it is determined that the contested immovables are not within the scope of the title deed registration and are not among the places listed before, when the zoning and revival has been made, when it was started and completed, from whom to whom, when the possession started and how it was maintained and whether it was suitable for its economic purpose, based on material events and in detail, at the beginning of the immovable. local experts to be heard and witnesses from the parties should be asked, the accuracy of the words of local experts and witnesses should be checked with an expert committee report to be drawn up based on the documents mentioned above and which are the truth. If there are administrative investigation and unfair occupation (ecrimisil) minutes prepared by the authorities before or after the date of the lawsuit, these minutes should be applied instead and the persons whose names are written in the minutes are present as witnesses. It should be avoided, 14/1 of the Law No. 3402. Considering that the 40 and 100 decares restriction survey written in the article should be carried out by taking into account the provisions of the second paragraph of the same article, which was amended by the Soil Conservation and Land Use Law dated 3/7/2005 and numbered 5403, the person or persons on whose behalf a registration decision will be made, other heirs and their By asking separately from the Registrar’s Office of the Civil Court whether there is an immovable, if any, that is determined and registered on the basis of possession from the undocumented in the same working area in terms of the legators, the type, parcel numbers and amount, whether there is a registration lawsuit filed by the Land Registry and related Cadastre Directorates and also by the same persons. When necessary, samples of the determination report and title deed records or registration case files should be brought and examined, and whether the immovable subject to the lawsuit is irrigated or dry agricultural land (Article 3/j of Law No. 5403 and Article 10 of the Regulation on Limitation, Detection and Control of Immovable Properties should be changed). According to the provisions of the second paragraph of k, irrigated agricultural land: the growth period of the cultivated plants.
A report should be obtained from the agricultural engineer in accordance with the purpose of the law and a decision should be made within the framework of the result.
It is against the procedure and the law to make a written judgment with incomplete examination, regardless of the matters explained.
Conclusion: For the reasons explained above; It was unanimously decided on 28.06.2016 that the appeal of the defendant, internal defendants …, …, … and … be accepted and the verdict be overturned and the appeal fee be refunded upon request.
