T.R. JURISDICTIONARY 20th Law Office Principle: 2019/ 4916 Decision: 2020 / 823 Decision Date: 18.02.2020
JUDICIARY DECISION
COURT: Cadastre Court
At the end of the trial of the case between the parties, the judgment of the Supreme Court of Appeals, combined with a hearing, was convened by the plaintiffs … and … attorney Atty. Upon the notification made for the appointed date of 02/04/2019 upon the request by …, the appellants … and … their attorney Atty…., on the other hand, the plaintiff Treasury attorney Atty. … came, no one else came, the open trial began. After the decision to accept the appeal petitions, which seemed to be on time, the verbal statements of the attendees were heard, and it was reported that the hearing was over. The matter has been decided. Afterwards, all the documents in the file were examined and the necessary thought was given:
DECISION
During the cadastre, the immovables on the 223 block 4, 15, 17, 19, 35, 40 and 44 parcel and the 225 block 6 parcel and the 227 block 9 parcel numbered immovables in the town of …
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defendant due to statute of limitations…; 227 block and 10 parcels were determined in the name of … and … with ½ share each.
Claimant Treasury, 223 nos. 4, 17, 19, 35, 40 and 44; He filed a lawsuit with the claim that the acquisition conditions were not met on the immovable properties no. 225 6 and parcel no. 227 9 and 10, demanding the cancellation of the determination and the decision to be registered and registered in the title deed on behalf of the Treasury.
In the combined file, the plaintiff requested the registration of parcels no. 15, 17 and 19 on island 223 and parcel no. 9 on island 227.
With the rejection of the objection, the court decided to register and register the immovables subject to the lawsuit in the title deed in the name of the Treasury in accordance with Article 18 of the Law No. 3402, the judgment was appealed by the plaintiff. With the decision numbered, “The research and verdict made by the court is not sufficient.
1) The lawsuits against the determination of the cadastre are opened by showing the owners of the determination as the opponent. Among the contested immovable properties, parcel no. 227 has been identified in the name of … and …, a lawsuit has been filed only against …
2) From the scope of the file, it is understood that the immovables numbered 223, block 35 and parcel 40, whose original minutes are not in the file, are also the defendant in the file of the court no. 2011/8. It is not thought that all lawsuits filed against the same parcel should be concluded together in order not to make conflicting decisions and to avoid hesitation in execution,
3) In the combined file, the persons who filed a lawsuit against …, …, … and … against plots 15, 17, 19 on island 223 and plot 9 on plot 227, are not shown in the title of the decision of the file at hand, and the persons whom the hostility is directed are not shown in the title of the decision. possible, for which no decision has been made regarding
4) In the 1st paragraph of the decision drawn up by the court, it was stated that the objection was rejected and it was not clearly stated which plaintiff’s objection was rejected. However, the cancellation of the cadastral determination of the immovables and the decision to register them in the name of the Treasury in accordance with Article 18 of the Law No. 3402, without specifying the type and quality, is against the procedure and the law and is the reason for the cancellation.” It was decided to quash the judgment.
Plaintiff …, on the other hand, for the immovables numbered 35 and 40 plots on block 223 and plots numbered 6 on block 225.
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14/1 of the Cadastre Law No. 3402, in terms of immovables no. 225 no. 6 parcels, no. 223 parcels 35, parcels 223 no. As it was understood that the necessary conditions were not found in accordance with the article, it was decided that the immovables related to the cancellation of the cadastral determinations were to be registered and registered in the name of the Treasury in accordance with the 18th article of the Law No. 3402. With the decision numbered, “Although the court has made a written provision on the grounds that the immovable property subject to the lawsuit has not been possessed for the last 20 years, and that the immovable properties that are outside the provisions of Article 14 and subject to registration will be determined in the name of the Treasury, pursuant to Article 18 of the Law No. 3402; The evaluation is not suitable for the scope of the file.
If the immovables numbered 223, parcel no. 35 and parcel 40, which are the subject of the lawsuit, are the immovables numbered 225 and 6 parcels of the Treasury, they are also the defendants in the case file of the Cadastre Court, numbered 2011/10, due to the lawsuit filed by …. As a result of the examination carried out by the 20th Civil Chamber of the Court of Cassation on the appeal of the plaintiff …, “all the lawsuits filed against the same parcel, stating that the immovables with no. result in seeing together
The provision was overturned on the grounds that “it should be Although it was stated in the aforementioned announcement that the minutes of parcel no. 223 and plot 35 were not included in the file; The original of the minutes of this real estate is in the case file numbered 2011/8, and the originals of the minutes that are not among the file subject to the annulment decision of the 20th Law Office belong to plots no. 223, no. 40 and plots no. 225. As such; The immovables, which are subject to lawsuit and appeal in the file numbered 2011/8, parcel no. 223, no. 35, 40 and no. 225, 6, are the defendants in the old 2011/10 Main and new 2014/42 case file, by combining all pending lawsuits regarding the same immovable. must be seen. It is inappropriate for the court to ignore this issue and make a decision as it is written, and the appeal objections are valid for the reasons explained.
The court decided to combine the cases in accordance with the annulment orders. During the trial, he participated in the lawsuit with the request for the registration of the immovable property numbered no. 223, parcel no. 40, in the name of the immovable. As a result of the trial, the lawsuit filed by the plaintiff Treasury was accepted in the main file, and the subject of the lawsuit was Türkoğlu district, … Karapınar district, block 223, parcel 4, parcel 223. With the cancellation of the cadastral determinations of the immovables no. 35 parcels, parcel no. 223, parcels no. 223, parcels 19 parcels, parcel 223, parcels no. Detection and registration as forest on behalf of the Treasury, rejection of the lawsuit filed by the plaintiffs in the combined file no. 2011/12, in terms of immovables in the district no. In the file numbered 71, the plaintiff’s
of the case; It was decided to reject the lawsuits of the plaintiffs … and … with the intervening … in terms of the immovables numbered …, plot no. 223 no. 35, plot no. 223 no. by the merging plaintiffs … to the immovables numbered 223, 15, 17, 19 and 227, 9 parcels, by the merging plaintiff … to the immovables no. The internal defendant … his heir … appealed against the immovable property no. 227, parcel no. 227. With the decision dated 30/11/2018, despite the memorandum, due to the fact that the appeal expenses were not paid, it was decided that the combined plaintiffs … and … were deemed to have abandoned their appeal, the combined plaintiffs … and … It was appealed by the attorney within the additional decision period dated 30/11/2018.
The case is about the objection to the cadastral determination.
The forest cadastre and 2/B article applications made in accordance with the Law No. 6831 in the region were finalized in 1991. There are corrections made in accordance with the Law No. 4999, which became final on 03/06/2011.
In the examination made by our department, it was determined that there were sufficient costs and advances in the file, and it was decided to cancel the additional decision dated 30/11/2018 that the plaintiffs … and …, who were united in violation of the procedure and the law, were deemed to have abandoned their appeal, the file and its annexes were examined, the need was considered;
Although the court dismissed the lawsuit of the plaintiff and the main intervening party, it was decided to register the immovables in dispute with the nature of forest in the name of the Treasury. The bill of sale and other documents on which the plaintiffs are based were not duly applied, although the plaintiff Treasury did not have a lawsuit against the contested real estate no. 223 no. 15 parcel, it was decided to register the immovable as a forest in the name of the Treasury. has been done. No judgment can be made based on incomplete research and examination.
In that case, the old-dated country map, aerial photographs, and aerial photographs of the years 1990-1995 and the management plan, if any, should be brought from the relevant places by the court. An approved forest limitation map sample showing the location of the immovable together with the forest restriction border points, together with the suspension announcement minutes of completion and results of the work, should be obtained separately. Aerial photographs used in the preparation of forest cadastre reports and maps according to the location, place, person names and angles and distances written on the bureau forest border points minutes and maps, in the examination and reconnaissance to be carried out by an engineer, an agricultural engineer and a science employee, and By making use of the country maps, different angles and
At least 6-7 forest border points at a distance of e should be found and re-rated, the border points related to the forest cadastre should be converted to the same scale, the location of the contentious immovable according to the forest cadastral map is on the general cadastral map and if there are parcels subject to the lawsuit on the same or near forest border lines, all of these should be shown on the combined map, the expressions in the minutes should be evaluated, it should be determined whether there is a contradiction between the minutes and the restriction map, if there is a conflict between the restriction minutes and the maps in terms of the contentious parcel, the conflict between the restriction minutes and the maps will be eliminated by valuing the restriction minutes, jointly signed, leaving no room for hesitation, an annotated, sketched report The location of the immovables according to the forest cadastre should be determined in such a way that there is no hesitation, and the old-dated documents brought should be applied to the surrounding land together with the contested immovable, and how the previous immovable is described in these documents. should be determined; The situation against the laws numbered 3116, 4785 and 5658 should be determined; deed and
Relevant paragraphs of Article 45 of the Law No. 3402, which provides the opportunity to acquire land from the forest with possession, the Constitutional Court dated 01.06.1988 and 31/13 E.K.; 14.03.1989 day and 35/13 E.K. and 13.06.1989 day and 7/25 E.K. No. place should be considered; soil structure, vegetation and its environment should be examined; During the discovery, under the supervision of a judge, color photographs of the immovable from four directions should be taken, approved and added to the file; The other documents mentioned above were enforced by science and expert forest experts; After the original-color (color photocopy) aerial photographs and the scale of the country map are converted to the scale of the cadastral map, and the scale of the cadastral sheet is converted to the scale of the aerial photographs and the country map (by using Net-Cad or similar programs), they overlap each other to include the neighboring and near-neighbor parcels. The content of the contested immovable should be displayed on the country map and aerial photographs together with the surrounding parcels, by means of a stereoscope, it should be determined whether the nature of the immovable subject to appeal and its limits of use are clearly visible, the type of vegetation on the immovable, its age, Adequate report should be obtained, which explains the distribution, occlusion rate, based on practice and research, not only on the office examination, and containing scientific data with sketches approved by experts.
If, as a result of the research to be carried out with the method explained, it is determined that the immovables are outside the final forest boundaries and are not considered to be forests in terms of their previous and current status, this time, the conditions of acquisition by possession will be investigated, and the agricultural engineer will be examined as an agricultural expert in the discovery to be made, and the immovable can be acquired by possession. It should be determined whether it is a cultural land or not, and a report should be taken on this road; It should be investigated how they describe these immovables as borders by bringing the minutes and bases of the neighboring parcels and applying them; if any, the witnesses of possession should be heard at the head of the immovables; When the possession started and how it lasted for how many years, clear answers based on the exact date and facts were received; Until the date of determination, it should be determined whether the conditions for winning by possession for the benefit of the plaintiff are met; In accordance with Article 14 of the Law No. 3402, the determination of unregistered and undocumented other immovable property within the same work area on behalf of the plaintiffs and the main intervener, in accordance with Article 14 of the Law No. 3402. 14/2 of the same Law, which was amended by the Soil Conservation and Land Use Law No. 5403 dated 3/7/2005. The amount of land acquired with or without water should be determined by considering the provision of Article 2, it should be determined whether the limitation imposed by the Law was exceeded, it should be taken into account that the plaintiff Treasury did not have a lawsuit against the real estate no.
According to the acceptance, the defendant is brought against the defendant in the lawsuits filed against the beneficiary of registration by the State or other public institutions and organizations for the annulment of the determinations and records created by the cadastral process, which was added to the Law No. 3402 with Article 16 of the Law No. 6099, which entered into force on 19.01.2011.
litigation expenses, including attorney’s fees, shall not be charged.” “The provision of article 36/A of this Law is also applied to the litigation expenses, including the attorney’s fee, in judicial decisions that have not been executed yet.” In accordance with the provisions of the temporary article 11, the attorney’s fee appraisal in favor of the plaintiff Treasury is erroneous.
It is against the procedure and the law to make a written judgment based on incomplete examination and insufficient expert report, regardless of the matters explained.
CONCLUSION: For the reasons explained above; the merging plaintiffs …’s 223 island 15, 17, 19 and 227 block 9 parcel numbers, the merging plaintiff …’s 223 block 35, 40 parcels
and immovables numbered 225, parcel no. 6; With the acceptance of the objections of the internal defendant … heir … against the immovable, block no. 227, parcel no. 227, the verdict was quashed with regard to these immovables. It was unanimously decided on 18/02/2020 that the fee be collected from the defendant Treasury and given to … and … who represented him by proxy, and that the appeal fee be refunded upon request.
