Land Registry Cancellation And Registration Case Can Be Converted Into Indefinite Claim With Full Amendment
8th Civil Chamber 2016/14010 E. , 2020/2504 K.
“Case Law Text”
OF THE JUDGEMENT UNDER REVIEW
COURT :Civil Court of First Instance
TYPE OF CASE : Deed Cancellation and Registration
At the end of the trial held in the above-mentioned case between the parties, the Court decided to dismiss the case and the judgement was appealed by the plaintiffs’ attorney and the defendants …, …, …, … and … attorneys.
DECISION
The attorney for the plaintiffs stated in the petition that …, the heir of the plaintiffs, purchased 151 square metres of the immovable property numbered 23897, block 9, parcel 9 from …, the heir of the defendants, externally in 1978, that … died in 1978 and left the defendant heirs, that the conditions of acquisition by extraordinary acquisitive prescription have been fulfilled for his clients in the said immovable property since approximately 36 years have passed since the death of …, and that during this period, the said immovable property has …. …,
who purchased the aforementioned part of the immovable subject to the lawsuit externally, died in 2014, and requested the cancellation of the title deed registration in the name of the defendant’s murisi … on the immovable property numbered 23897 block 9 parcel in terms of the aforementioned part and the registration of this part of the immovable property to the title deed in the name of their clients, and then submitted an amendment petition dated 04. 01.01.2016 dated 04.01.2016, and converted the claim into a claim for 5.000,00 TL in the nature of indefinite receivable for the immovable property numbered 24163 block 3 parcel.
The attorneys of the defendants …, …, … and … defended the dismissal of the lawsuit by stating in their reply petition that the plaintiff did not submit any evidence to the file regarding the sale, and that it is understood from the official records that the title deed transfers of all parcels for which the money has been paid have been completed.
The other defendants did not respond to the lawsuit despite the notifications duly served to them.
Lawsuit was initially filed as a lawsuit for cancellation and registration of title deed (based on the reason that the title deed record has lost its legal value due to the death of the owner of the record in Article 713/2 of the TMK), and then the plaintiff’s full amendment of the lawsuit in accordance with Article 180 of the CCP turned into a claim for receivables (It is an indefinite receivable lawsuit).
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Court said, “As a result of the witness statements and the expert examination, it was understood that the immovable property numbered 23897 block 9 parcel, which is the subject of the lawsuit, is not related to the area subject to sale between the parties’ muris, and that the place subject to sale is an empty land approximately 50 metres north of the parcel subject to the lawsuit, The area in question is within the immovable property numbered 24163 block 3 parcel, accordingly, it is concluded that the plaintiffs’ requests for cancellation and registration of the title deed regarding the immovable property subject to the lawsuit are not appropriate and that the defendants are not subject to the request, and it is also concluded that the plaintiffs’ attorney’s 04. 01. 2016 dated petition for the defendant Nusret Eryurt heirs …, …, …, … and …,
and in their request for amendment, according to the purchasing power of 358 m² of land as of the date of the purchase of the immovable property numbered 24163 block 3 parcel as of the date of the sale of 358 m² of land as of the date of the possibility of the sale, as an indefinite receivable for the time being 5. 000,00 TL as an indefinite receivable, according to the purchasing power of the 35 m² plot of land as of the date of the possibility of sale, together with the legal interest to be applied from the date of the impossibility of performance,
since what is meant by the amendment is to expand or change the issues subject to the lawsuit, it is not legally possible to import something that is not the subject of the lawsuit into the lawsuit and to make it the subject of the lawsuit through amendment, and therefore the amendment request should be rejected”, the judgement was appealed separately by the attorneys for the plaintiffs and the attorneys for the defendants …, …, … and …….
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In the concrete case, on page 7 of the report dated 02.12.2015 prepared by the expert committee, it was determined that the 151,00 square metre immovable part subject to the lawsuit was not within the 23897 block 9 parcel written in the lawsuit petition, but within the boundaries of the immovable property numbered 24163 block 3 parcel, and the attorney of the plaintiffs submitted a petition for amendment dated 04. 01.01.2016 and said in the aforementioned petition “The title deed registered in the name of Nusret Eryurt in Altındağ District Başpınar Neighbourhood 23897 island-3 parcel Nusret Eryurt has been sold to someone else and the transfer of the title deed has become impossible. In the light of the expert report and the documents in the file,
we fully amend our case as an indefinite receivable case in terms of the four defendants specified in this petition”, according to Article 180 of the CCP, and in the conclusion-demand part of the said amendment petition, “As of the date of purchase of 358 square metres of land in 24163/3 block/parcel as of the date of the sale is impossible (according to the rules of equalising justice) as an indefinite receivable for now 5. 000,00 TL from the defendants …, …, … and …, together with the legal interest to be applied from the date of the impossibility of performance “, and transformed the title deed cancellation and registration claim at the beginning of the lawsuit into a claim for receivables. Pursuant to Articles 177 and 180 of the CCP, the plaintiff party may amend the lawsuit completely until the end of the investigation.
For this reason, while the court should take into account Articles 177 and 180 of the CCP and decide on the request made by amendment by collecting the evidence of the parties in line with the plaintiff’s request to amend the case completely, it was not correct to make a written decision with the erroneous assessment that what is meant by amendment is the expansion or change of the issues subject to the lawsuit, and that it is not legally possible to import something that is not subject to the lawsuit into the lawsuit and make it the subject of the lawsuit through amendment.
CONCLUSION:
For the reasons explained above, the appellate objections of the plaintiffs’ attorneys are accepted, the judgement, which is contrary to the procedure and the law, is DISMISSED in accordance with Article 428 of the Code of Civil Procedure No. 1086 with reference to the Provisional Article 3 of the Code of Civil Procedure No. 6100, and the appellate objections of the defendants …, …, …, … and … attorneys are not examined for the time being, and it is not necessary to examine the appellate objections of the defendants …, …, …, … and … attorneys for the time being,
and it is not necessary to examine the appellate objections of the parties in accordance with Article 440/1 of the Code of Civil Procedure. In accordance with Article 440/1 of the Code of Civil Procedure, it was unanimously decided on 12.03.2020 that the parties may request a correction of the decision within 15 days from the notification of the Supreme Court Chamber’s judgement, and the advance fee shall be returned to the appellants separately, if requested.
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