Registration Correction Requests In Land Registry Are Non-Contentious Judicial Matters
General Assembly of Civil Chambers 2017/1210 E. , 2020/548 K.
“Case Law Text”
COURT :Magistrate Law Court
1. At the end of the trial held due to the lawsuit between the parties for the “determination that the owner of the immovable property and the plaintiff’s deceased are the same person”, the decision of Istanbul Anatolian 16th Civil Court of Peace was reversed by the 1st Civil Chamber of the Court of Cassation upon the appeal of the plaintiff’s attorney, and the Court resisted against the reversal decision of the Special Chamber.
2. The decision of resisting was appealed by the plaintiff’s attorney.
3. After the documents in the file were examined by the General Assembly of Civil Chambers, the necessity was discussed:
I. JUDICIAL PROCESS
Plaintiff’s Request
4. In the petition for the lawsuit, the plaintiff’s attorney stated that his client requested the removal of the trusteeship decision on the immovable property numbered 631 block 2 parcel in the file numbered 2005/832 E. of Kadıköy 2nd Civil Court of Peace. No. 2005/832 E. of the Kadıköy 2nd Civil Court of Peace and requested that the trusteeship decision on the immovable property numbered 631 block 2 parcel be lifted and the administration be given to him as the heir,
but it was understood that the names of the heirs …Hakkı and … were mistakenly written as …and … in the title deed record, the court gave his client time to file a lawsuit for the correction of this mistake, in the letter dated 29.06. 2006 dated 29.06. 2006 and numbered 157, it was reported that 36/192 shares of the immovable property belonged to … son of … and 14/192 shares belonged to Mehmet Hamdi son of …,
and although the names of the owners appear as “…” and “…” in the title deed record, in reality … is the plaintiff’s heir “Mehmet Hamdi son of …”. “, … Hakkı is the grandfather of …, the shareholder … adopted the plaintiff and the plaintiff is the sole heir, and requested the correction of the owner names written as “…” and “…” in the title deed record as “… Hakkı” and “…”, and at the hearing dated 20. In the hearing dated 20.02.2014, after the evidence was collected, they determined that the title deed owner … is not the plaintiff’s ancestor, but declared that … is the ancestor of his client and requested a decision in this respect.
Defendant’s Reply:
5. In his reply petition, the defendant’s attorney argued that 36/192 shares of the immovable property belonged to … son of …, the grandfather of …, who was requested to be corrected as … Hakkı in the petition, was Halil son of … Hakkı, and that their father names were different, that these people were not the same person, that there was no clerical error in the land registry, and requested the dismissal of the lawsuit.
Decision of the Court of First Instance:
6. Istanbul Anatolian 16th Civil Court of Peace dated 26.06.2014, 2012/338 E., 2014/465 K. With the decision dated 26.06.2014 and numbered 2012/338 E., 2014/44 K.; in subparagraph 382/ç-1 of the Code of Civil Procedure numbered 6100, the requests regarding the formation of a party on the immovable property and making corrections that will not cause violation of rights are regulated as non-contentious judicial business, and the plaintiff, who was a shareholder in the title deed before the sale of the immovable property with the court decision … son … and Mehmet Hamdi son … ‘s heir,
the lawsuit is not related to the formation of a party and the correction that will not cause a violation of rights, the determination of the persons shown in the letters of inheritance of the persons who the plaintiff claims to be the heir of the plaintiff, and the completion of the party formation by including these persons in the lawsuit and then the lawsuit should be heard, and that the request is not a non-contentious jurisdictional matter, it has been decided that the court has no jurisdiction, and that the file will be sent to the Istanbul Anatolian Civil Court of First Instance upon the finalisation of the decision and upon request.
Special Chamber Reversal Decision:
7. The above-mentioned decision of the Court was appealed by the plaintiff’s attorney.
8. With the decision of the 1st Civil Chamber of the Court of Cassation dated 09.12.2014 and numbered 2014/21349 E., 2014/19278 K;
“…The case is related to the request for the determination that the owner of the registration and the plaintiff’s heir are the same person, and it was filed during the enforcement of the Code of Civil Procedure numbered 6100 (CCP); the court has given a decision of non-jurisdiction by stating that the case should be heard in the civil court of first instance as a contentious jurisdiction.
As it is known, Article 382/1 of the Code of Civil Procedure No. 6100 stipulates that “Non-contentious jurisdiction is the application of the law by the courts to the matters falling within this jurisdiction according to one or more of the following three criteria”; these criteria are stated as cases where there is no dispute between the parties concerned, cases where there is no right that the parties concerned can assert, and cases where the judge acts ex officio.
In the Law, the types of non-contentious judicial proceedings are specified first by determining the general framework and then by enumerating them as much as possible. However, since this enumeration is not limited, other matters that are not listed in the article of the law but meet the criteria of non-contentious jurisdiction should also be accepted as non-contentious jurisdictional matters. In other words, a matter that is not listed in Article 382 but meets one or more of the criteria of non-contentious jurisdiction may also be considered as a matter of non-contentious jurisdiction.
In such cases, there is no dispute between the requesting party and the Land Registry Office. The Land Registry Office is only a legal adversary in the case. In reality, it is not a party to the proceedings, but only an interested party. In the event that the parties concerned reconcile, it cannot be said that the dispute has disappeared, and the acceptance of the case by the party concerned does not have any consequences. İn this sense, there is no real dispute between the parties.
On the other hand, in paragraph 2ç/1 of Article 382, “Making corrections on the immovable property that will not cause the formation of a party and violation of rights” is listed as a non-contentious judicial work, and the works of determining that the owner of the title deed record and the plaintiff’s muris are the same person also comply with this definition.
As such, instead of examining the merits of the matter and making a decision according to the result, it is not correct to establish a written judgement…”.
Decision on Resistence:
9. With the decision of Istanbul Anatolian 16th Civil Court of Peace dated 05.05.2015 and numbered 2015/146 E., 2015/313 K., a decision of resisting was made on the grounds in the first judgement.
Appeal of the Resistence Decision:
10. The decision of resisting was appealed by the plaintiff’s attorney within the time limit.
II. DISPUTE
11. The dispute before the General Assembly of Civil Chambers by way of resisting; according to the claimant’s claim and the scope of the file, whether the case at hand is related to a correction that will not cause the formation of a party and violation of rights on the immovable property, and whether it should be seen in the civil court of peace as a non-contentious jurisdictional matter according to the result to be reached.
III. REASON
12. First of all, it should be noted that, since the purpose of the lawsuits filed for the correction of identity information in the land registry is to make the land registry records compatible with the population records, the requests in this direction also include the request for the determination that the owner of the land registry and the plaintiff or his heir are the same person.
13. In the lawsuit petition, it was claimed that … and …, the owners of the immovable property numbered 631 block 2 parcel, were the heirs of the plaintiff, and a request was made for the correction of the names of the owners written in the title deed record in accordance with the population records, and with the statement of the plaintiff’s attorney dated 20.02.2014, the request was limited to …, one of the owners of the record.
14. However, since the immovable property numbered 631 block 2 parcel before the date of the lawsuit was sold upon a court decision and registered on 24.03.2011 in the name of a person named Sıddık Paşa, it is clear that the plaintiff has a legal interest in determining that the owner of the record and the plaintiff’s muris are the same person, although no correction can be made in the title deed record anymore.
15. As it is known, the incomplete or erroneous recording of the identity information such as the name, surname, father’s name, gender, date of birth of the owner of the property right during the cadastral determination or registration of immovables to the title deed constitutes the source of the record correction cases.
16. According to Article 1027 of the Turkish Civil Code (TCC) No. 4721, without the written consent of those concerned, the land registry officer can only correct the inaccuracy in the land registry by court decision, except for simple typographical errors (ordinary clerical errors) that can be corrected ex officio in accordance with the rules of the Land Registry Regulation.
17. On the other hand, non-contentious jurisdiction is a type of jurisdiction that has different characteristics from contentious jurisdiction, and Article 382, paragraph 1 of the Code of Civil Procedure (CCP) No. 6100 states that subparagraph 1 of Article 382 of the Code of Civil Procedure (CCP) No. 6100; “Non-contentious jurisdiction is the application of the law by the courts to the matters falling within this jurisdiction according to one or more of the following three criteria”, and the three basic criteria are expressed as “cases where there is no dispute between the parties concerned”, “cases where the parties concerned do not have any rights to assert” and “cases where the judge acts ex officio”.
18. As can be understood from this regulation, in contentious proceedings, there is a dispute between the parties that must be resolved by the court within the framework of claim and defence. In non-contentious proceedings, on the other hand, there is no dispute between the parties concerned. Again, while the subjective rights of the parties constitute the subject matter of the contentious proceedings, the person making the request in the non-contentious proceedings has no subjective rights that can be asserted against the relevant party.
19. While the principle of bringing by the parties (Art. 25 CCP) is valid in contentious proceedings, the principle of spontaneous investigation is valid in non-contentious proceedings, unless otherwise stipulated.
20. The court in charge in non-contentious proceedings is the civil court of peace, unless otherwise stipulated (Art. 383 CCP). Again, although the written procedure is the main procedure in contentious proceedings, the simple procedure shall be applied in non-contentious proceedings to the extent appropriate to their nature (Article 385/1 of the CCP).
21. The nature of the decisions rendered in non-contentious proceedings is also clearly regulated in Article 388 of the CCP, and it is stipulated that, unless otherwise provided by law, non-contentious judicial decisions shall not constitute a final judgement in material terms. Therefore, in the event that the judgement is deemed unfair or erroneous, it is possible to file a request for correction according to the evidence put forward, and the judgement may be amended.
22. In the CCP, the types of non-contentious judicial proceedings are specified first by determining the general framework and then by enumerating them as much as possible. However, since this enumeration is not limited, other matters that are not listed in the article of the law but meet the criteria of non-contentious jurisdiction should also be accepted as non-contentious jurisdiction.
23. In the registration correction cases, which must be filed by directing hostility to the land registry office, there is actually no dispute between the land registry office and the plaintiff. The land registry office, which is in charge and responsible for keeping the land registry, is only a legal adversary in the lawsuit. It is not a party to the proceedings, but an interested party. It cannot be said that the dispute has ended with the reconciliation of the plaintiff and the land registry office, nor does the acceptance of the case by the relevant land registry office have any consequences.
24. For this reason, the requests for correction of registration are in the nature of non-contentious judicial proceedings, and the civil court of peace has jurisdiction. The court shall decide by collecting the evidence in accordance with the principle of ex officio investigation, both because it is a non-contentious judicial matter and because the State, which undertakes to keep the land registry to show the rights on immovables and to ensure their establishment and transfer, has the obligation to create an accurate registry.
25. Although the decisions rendered in such cases do not constitute a final judgement, in order to decide on correction or registration, the court must conduct a proper investigation and determine beyond doubt that the owner of the record and the plaintiff or the plaintiff’s heir are the same person. If, as a result of the examination and research to be carried out, a connection and consistency between the title deed and identity information is established, the request should be accepted.
26. While correcting the identity information, the owner of the immovable property should not change, in other words, no transfer of ownership should be caused. Because, in Article 382/ç-1 of the CCP, only making corrections that will not cause the creation of a party and violation of rights on the immovable property is considered as an uncontested judicial work.
27. In this context, in the case where the plaintiff claims that the owner of the registration is the same person as his/her own ancestor, even if other non-suiting persons create a dispute by claiming that the owner of the registration is their own ancestor, the determination case does not fall within the scope of non-contentious jurisdiction. Such a situation can only constitute a reason for dismissal of the case in order not to cause transfer of ownership.
28. On the other hand, the case started to be heard in the competent court upon a decision of non-jurisdiction is not a new case, but a continuation of the case filed in the non-jurisdictional court. For this reason, in the event that a dispute arises or the possibility of transfer of ownership arises during the lawsuit filed with the request for rectification or determination of registration, it is not possible to continue the case in the civil court of first instance by making a decision of non-jurisdiction.
Because, since the land registry office is not a party to the dispute or ownership dispute that arises, it is not possible to resolve the dispute by continuing the dispute against it in the competent court. The plaintiff does not have a property right demanded from the land registry office, which is only involved in the case at hand in the relevant capacity, in the sense of material law.
29. As a matter of fact, in a similar case; with the decision of the General Assembly of Civil Chambers dated 04.04.2019 and numbered 2017/1-1261 E., 2019/408 K., it has been accepted that the case cannot be continued in the civil court of first instance by making a decision of lack of jurisdiction, since the trial procedures are different from each other and there is no technical adversary in uncontested judicial proceedings.
30. During the discussions at the General Assembly of Civil Chambers, it was stated that the rules on jurisdiction are related to public order and are also a condition of the lawsuit, on the other hand, the determination of who is the plaintiff and defendant in a lawsuit will be determined by the court in charge according to the rules of substantive law, In the concrete case, it was stated that the lawsuit filed by the plaintiff claiming ownership rights on the immovable is not a matter of uncontested jurisdiction and the court in charge is the civil court of first instance, and that the local court’s decision of resistance regarding the duty should be approved, but this opinion was not adopted by the majority of the General Assembly of Civil Chambers.
31. In that case, while the Special Chamber’s reversal decision, which was also adopted by the General Assembly of Civil Chambers, and for the additional reasons explained above, the reversal decision should be complied with and a decision should be made on the merits of the matter, it is against the procedure and the law for the court to resist the previous decision on the grounds of lack of jurisdiction.
32. Therefore, the decision to resist should be reversed.
IV. CONCLUSION:
For the reasons explained;
With the acceptance of the appeal objections of the plaintiff’s attorney, the decision of resistance shall be reversed in accordance with Article 429 of the Code of Civil Procedure No. 1086, which is being applied according to the Provisional Article 3 of the Code of Civil Procedure No. 6100, for the additional reasons shown in the Special Chamber’s reversal decision and explained above,
In case of request, the advance appeal fee shall be returned to the depositor,
Pursuant to Article 440/III-2 and 3 of the same Law, it was decided by majority vote on 08.07.2020, with the way of decision correction closed.
VOTE AGAINST
1. The main dispute between the Special Chamber and the local court centres on whether the registration correction lawsuit filed for the correction of the name of the registered owner of the immovable property in the title deed in order to ensure the delivery of the immovable property in the trustee, which he claims to belong to his deceased, and the removal of the trusteeship decision, is a non-contentious jurisdictional matter, whether it is related to a correction that will not cause the creation of a party and violation of rights on the immovable property, and whether it should be seen in the civil court of peace as a non-contentious jurisdictional matter according to the result to be reached.
2. The local court stated that “the corrections that will not cause the creation of a party and violation of rights on the immovable property are non-contentious judicial works, the plaintiff claims that the previous owners of the immovable property, who were identified only by their fathers’ names and whose identifying clear identity information and population registration information were not written in the records, are his own ancestors, and this request is also for the determination of the fact that the plaintiff’s ancestors are the owners of the immovable property, whereas, from the documents based on the registration, the owner of the title deed … ‘s other heirs and these persons and even other immovable shareholders should be included in the case and a decision should be made with the trial to be held after the parties are formed,
and the case is not one of the works regulated in Article 382/2-ç”, the decision of the Special Chamber with the majority opinion and the Special Chamber’s reversal decision and the additional reasoning were adopted and the decision of the Special Chamber was adopted and it was stated that “the case is a registration correction case and the land registry directorate is shown as a party in the case, the land registry directorate is a legal adversary, the heirs of the owner of the title deed record are not shown as parties, there is no real dispute, and in case it is determined that the plaintiff is not the heir of the title deed record, the lawsuit should be dismissed”, the decision of resistance was reversed and it was accepted that the civil court of peace has jurisdiction.
3. The reversal decision of the Honourable Majority is not justified for the reasons explained below and especially for the reason that in the event that the owner of the title deed registration requests the delivery of the immovable property to him as the heir, claims ownership, and it is understood that he is not the heir, the case should be evaluated in the competent court.
4. The rules on jurisdiction are of public order (Art. 1. sentence 2 of CCP No. 6100) and the jurisdiction of the courts is one of the conditions of litigation (Art. 114/1.c of CCP No. 6100). Therefore, the court shall examine (at every stage of the case) whether the court has jurisdiction or not, and if it is of the opinion that it does not have jurisdiction, it shall issue a decision of non-jurisdiction (Art. 115,1).
5. The title of the holder of a right (the plaintiff) or the obligor who is obliged to comply with that right (the defendant), in other words, the title of the plaintiff and the title of the defendant in a lawsuit, is entirely determined by the rules of substantive law. However, in the event that it is determined that the parties to a lawsuit do not have the title of plaintiff or defendant in terms of that lawsuit, the court cannot examine whether the right subject to the lawsuit exists or not, and must decide to dismiss the lawsuit due to lack of title; therefore, the title of party is also regulated by procedural law.
Whether a person has the title of plaintiff or defendant is determined according to the substantive law, just as in the determination of whether the right exists (Kuru, Baki-Arslan, Ramazan-Yılmaz, Ejder: Medeni Usul Hukuku, Yetkin Yayınları, Ankara 1995, 7th edition, p.231.,Üstündağ, Saim. Medeni Yargılama Hukuku, Alfa Basım Yayım Dağıtım, İstanbul 1997, p.307).
6. Pursuant to Article 382 of the CCP No. 6100, as a general criterion, “Non-contentious jurisdiction is the application of the law by the courts to the matters falling within this jurisdiction according to one or more of the following three criteria:
a) Cases where there is no dispute between the parties concerned.
b) Where the parties concerned do not have any rights that can be asserted.
c) Cases where the judge acts ex officio.
As can be seen, if there is a dispute between the parties or if a party claims that he/she has a right, it will not be possible to speak of an uncontested judicial matter.
On the other hand, in the same article, “making corrections on immovable property that will not cause the creation of parties and violation of rights” is considered as a non-contentious judicial act in property law (382/ç.1). According to this provision, if the request for rectification of registration will create a party and cause violation of rights, the case for rectification of registration cannot be considered as a non-contentious judicial matter.
7. In the concrete dispute, it is established that the plaintiff has clearly stated in the petition that he is the heir of the owner of the land registry, and that he has filed a lawsuit for rectification of the registration in the land registry in order to remove the trustee decision and to give the immovable property to him. The plaintiff claims a right, and if a party is not formed, a violation of the right will be caused. In that case, it is clear that this action for rectification of the land registry is not a matter of non-contentious jurisdiction and therefore, the civil court of first instance, which is a general court, will have jurisdiction, not the civil court of peace.
The opinion of the majority that the court should reject the claimant out of hostility if it is determined that the claimant is not an heir is not justified according to the aforementioned provisions. This is because hostility, which is a matter of substantive law, should be evaluated by the competent court. If there is a party formation in the registration correction case, in short, if there is a problem of hostility, the duty of the civil court of peace will disappear as required by law, since the dispute has become contentious. Since we find the local court’s decision to resist appropriate, we do not agree with the opinion of the majority for the reasons explained.
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