A Lawsuit For Dissolution Of Partnership Not Filed By The Plaintiff Does Not Fulfil The Condition Of Dismissal
8th Civil Chamber 2019/60 E. , 2021/2391 K.
“Case Law Text”
COURT :Civil Court of First Instance
CASE TYPE : adequate pay
At the end of the trial held in the above-mentioned case between the parties, the Court decided to partially accept the case and upon the appeal of the judgement by the defendant’s attorney, the file was examined and considered by the Chamber.
DECISION
The plaintiff’s attorney stated that the plaintiff and the defendant were joint owners of the immovables subject to the lawsuit by inheritance from the heir, but the defendant did not pay the rent for the share of the plaintiff and requested and sued for a decision on adequate pay.
The defendant defended the rejection of the lawsuit.
Court decided to partially accept the lawsuit and the judgement was appealed by the defendant’s attorney.
The lawsuit is related to the claim for adequate pay between the shareholders.
1. According to the contents of the file, the case documents and the minutes of the proceedings, the available evidence has been evaluated and decided by the Court and there is no inconsistency in the judgement, the other appellate objections of the defendant’s attorney, which are not covered by the following paragraph, have not been deemed appropriate.
2. As for the other appellate objections of the defendant’s attorney; as it is known, the shareholder who cannot benefit from the immovable property in shared ownership can always request the prevention of the encroachment on his share and / or adequate pay from the other shareholder or shareholders who prevent it.
As a rule, shareholders cannot claim adequate pay from each other unless they are prohibited. The fulfilment of the condition of prohibition of encroachment depends on the fact that the plaintiff shareholder has notified the defendant shareholder of the plaintiff shareholder’s intention to benefit from the immovable property subject to the lawsuit or its income before the period for which adequate pay is requested. However, there are some exceptions to this rule that have emerged through established judicial practices.
These are the immovable property subject to the lawsuit is a public property, the immovable property for which adequate pay is requested is one that yields natural products (such as vineyards, gardens) or where legal benefits are obtained by renting (such as workplaces, residences), the shareholder occupying the shared immovable property claims the right to the whole of this place and denies the shareholding of the others, As a result of the usage agreement made between the shareholders, the common immovable or parts of the immovable to be benefited by each shareholder are determined, and the plaintiff has previously filed lawsuits or execution proceedings against the other shareholders regarding this immovable, such as prevention of seizure, elimination of partnership, adequate pay and similar lawsuits.
Apart from this, in terms of the product brought by the immovable property, there is no need to fulfil the condition of prohibition of occupation in the case of occupation of spontaneous products; mown grass, collected hazelnuts, tea, or the business established by the muris or businesses that generate income on their own.
Therefore, except for the exceptions listed for the immovables subject to the lawsuit, the realisation of the condition of the prohibition of occupation shall be sought and the claim of the realisation of the condition of prohibition of occupation can be proved by any evidence.
In the concrete case, although the Court accepted that the condition of prohibition of occupation was fulfilled as a result of the dissolution of the partnership lawsuit filed before the present case and the defendant’s request for the defendant to hear witnesses was rejected; When the dissolution of the partnership file of the Ankara 3rd Civil Court of Peace numbered 2010/812 Esas was examined, it was seen that the lawsuit was filed by Saniye, the defendant in the present case, and other stakeholders who were not involved in the lawsuit, and the plaintiff in the present case was included as a defendant in the dissolution of the partnership lawsuit.
According to the principles and file content explained above; since the lawsuit for the elimination of the partnership, which was not filed by the plaintiff, will not fulfil the condition for the plaintiff to be excluded from the occupation; after the Court has given time to the parties who have relied on witness evidence in their petitions for lawsuit and response to the lawsuit to submit a list of witnesses, it is necessary to determine whether the condition for exclusion from the occupation has been fulfilled or not and to decide according to the result to be reached; it has not been deemed correct to reach a written conclusion with erroneous justification, and the judgement has to be reversed for this reason.
CONCLUSION :
The appellate objections of the defendant’s attorney are accepted for the reasons explained in subparagraph (2), the other appellate objections are rejected for the reasons explained in subparagraph (1), and the judgement is hereby reversed in accordance with Article 428 of the Code of Civil Procedure No. 1086 through the Provisional Article 3 of the CCP No. 6100. Article 428 of the Code of Civil Procedure No. 1086 with reference to Provisional Article 3 of the Code of Civil Procedure No. 6100, and that the way of correction of the judgement against the judgement is closed pursuant to subparagraphs 440/III-1, 2, 3 and 4 of the Code of Civil Procedure, and that the advance fee shall be refunded to the appellant upon request, it was unanimously decided on 17.03.2021
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