Decision On The Statute Of Limitations
T.C Judiciary 20th Civil Chamber Esas: 2019/ 4916 Decision: 2020 / 823 Date of Decision: 18.02.2020
JUDICIARY DECISION
COURT :Cadastral Court
At the end of the trial of the case between the parties, the judgment established at the end of the trial was requested to be examined by the Court of Cassation with a hearing by the combined plaintiffs … and … attorneys Av. …, upon the notification made for the appointed 02/04/2019 day, the appellant plaintiffs … and … attorneys Av…. came, on the other hand, the plaintiff Treasury attorney Av. … came, no one else came, the open hearing started. After it was decided to accept the petitions of appeal, which were understood to be in due time, the verbal explanations of those who came were heard, and the hearing was declared over. The matter was left for decision. Afterwards, all the documents in the file were examined and the necessity was considered:
DECISION
During the cadastral survey, the immovables numbered 223 block 4, 15, 17, 19, 35, 40 and 44 parcels, 225 block 6 parcel and 227 block 9 parcel in the town of … were classified as fields and
Winner>
the defendant … due to possession by prescription; and parcel 227 block 10 was determined in the name of … and … with ½ share each
The plaintiff Treasury filed a lawsuit for the cancellation of the determination and the registration of the immovables numbered 223 block 4, 17, 19, 35, 40 and 44; 225 block 6 and 227 block 9 and 10 parcels on behalf of the Treasury, claiming that the conditions for acquisition did not occur.
In the merged file, the plaintiff … requested the registration of the parcels numbered 223 block 15, 17 and 19 and 227 block 9.
The court rejected the objection and decided to register and register the immovables subject to the lawsuit 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 of our Chamber numbered 2013/10568 – 2014/6766 E.K. “The research and judgment made by the court is not sufficient.
1) The lawsuits objecting to the cadastral registration are filed by taking the owners of the registration as the adversary. Among the contested immovables, parcel 227 block 10 was determined in the name of … and …, and the lawsuit was filed only by directing the case against …, and the other owner of the determination … was included in the case and the judgment was established on parcel 227 block 10 without ensuring the party organization,
2) From the scope of the file, it is understood that the immovable properties numbered 223 block 35 and 40 parcels, the original minutes of which are not in the file, are also defendants in the file numbered 2011/8 Esas of the court. Failure to consider that all lawsuits filed for the same parcel should be finalized together in order to avoid conflicting decisions and hesitation in execution,
3) In the merged file … filed a lawsuit against …, …, …, … and … for parcels 15, 17, 19 of block 223, parcels 15, 17, 19 and block 227, parcel 9, and the title of the decision of the present file does not show … and the persons to whom the case is directed in the title of the decision, and it is possible that no decision has been made regarding …’s lawsuit,
4) In paragraph 1 of the decision of the court, it is stated that the objection is rejected, and it is not clearly stated which plaintiff’s objection is rejected, and in this case, which was filed as an objection to the cadastral determination, it should have been ruled as the rejection of the case regarding the objection to the cadastral determination, but the fact that the objection was rejected, and although the objection was rejected, the cancellation of the cadastral determinations 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 contrary to the procedure and law and is a reason for reversal. Article 18 of the Law No. 3402 without specifying the type and quality is against the procedure and the law and is a reason for reversal.” and it was decided to reversed the judgment.
The plaintiff …, on the other hand, for the immovables numbered 223 block 35 and 40 parcels and 225 block 6 parcels
winning
At the end of the trial held by the court, the objection was rejected, and it was decided to cancel the cadastral determinations and to register and register the relevant immovables in the name of the Treasury in accordance with Article 18 of the Law No. 3402, as it was understood that the necessary conditions were not found in accordance with Article 14/1 of the Cadastral Law No. 3402 in terms of immovables numbered 225 block 6 parcel, 223 block 35 parcel, 223 block 40 parcel, and upon the appeal of the judgment, the Court of Cassation 16. Civil Chamber of the Court of Cassation with the decision numbered 2014/20280 – 2015/8907 E.K. “Although the court has established a written judgment on the grounds that the immovable properties subject to the lawsuit have 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 pursuant to Article 18 of the Law No. 3402 will be registered in the name of the Treasury; the evaluation is not in accordance with the scope of the file.
The immovables numbered 223 block 35 and 40 parcels subject to the lawsuit are the defendant in the case file numbered 2011/10 Esas of the Cadastral Court due to the lawsuit filed by the Treasury and the immovable numbered 225 block 6 parcel is also the defendant in the case file numbered 2011/10 Esas of the Cadastral Court due to the lawsuit filed by …, and the Court decided to dismiss the lawsuit of … and to accept the lawsuit of the Treasury, and upon the appeal of the plaintiff …, the 20th Civil Chamber of the Court of Cassation decided on the appeal of the plaintiff ….. Civil Chamber of the Court of Cassation upon the appeal of the plaintiff …, the judgment was reversed on the grounds that “the immovables numbered 223 block 35 and 40 parcels, the original minutes of which are not in the file, are also defendants in the file numbered 2011/8 Esas of the court, and all the lawsuits filed for the same parcel should be finalized together”. Although it is stated in the aforementioned judgment that the minutes of 223 block 35 parcel is not included in the file; the original minutes of this immovable are in the case file numbered 2011/8, and the original minutes that are not included in the file subject to the reversal judgment of the 20th Civil Chamber belong to 223 block 40 and 225 block 6 parcels. As such, the immovable properties numbered 223 block 35, 40 and 225 block 6 parcels, which are the subject of the lawsuit and appeal in the case file numbered 2011/8 Esas, are also defendants in the case file numbered 2011/10 Esas, 2014/42 Esas, and all pending cases regarding the same immovable property should be consolidated. It is inappropriate for the court to make a decision as written by ignoring this issue, and the appellate objections are appropriate for the reasons explained” and it was decided to overturn the judgment.
The court decided to consolidate the cases by complying with the reversal orders, during the trial … joined the case with the request for registration of the immovable property numbered 223 block 40 parcel in his name, and as a result of the trial, with the acceptance of the lawsuit filed by the plaintiff Treasury in the main file, the subject of the lawsuit, Türkoğlu district, … In the file numbered 2011/12 Esas, the lawsuit filed by the plaintiffs in the case numbered 2011/12 Esas, the case filed by the plaintiffs in the case numbered 2011/12 Esas, the cadastral determinations of the immovables numbered 223 block 4 parcels, 223 block 35 parcels, 223 block 44 parcels, 223 block 19 parcels, 223 block 17 parcels, 223 block 15 parcels, 223 block 40 parcels, 225 block 6 parcels and 227 block 9 parcels, 227 block 10 parcels in Karapınar neighborhood were annulled and the immovables were determined and registered as forest on behalf of the Treasury. neighborhood 223 block 15 parcels, 223 block 17 parcels, 223 block 19 parcels, 227 block 9 parcels, and in the combined file numbered 2015/71 Main
The court dismissed the lawsuit filed by the plaintiffs … and … and the intervener … in respect of the immovable property numbered 289 block 12 parcels in … neighborhood of Kahramanmaraş province due to waiver, and dismissed the lawsuits filed by the plaintiffs … and … and the intervener … in respect of the immovable properties numbered 223 block 35 parcels, 223 block 40 parcels, 225 block 6 parcels in … neighborhood, and the judgment was rendered by the joined plaintiffs … in respect of the immovable properties numbered 223 block 15, 17, 19 and 227 block 9 parcels, and by the joined plaintiff … The appeal was filed by the internal defendant … heir … for the immovables numbered 223 block 35, 40 parcels and 225 block 6 parcels, and by the internal defendant … heir … for the immovable property numbered 227 block 10 parcel, and with the decision dated 30/11/2018, it was decided that the combined plaintiffs … and … were deemed to have abandoned the appeal request since the appeal expenses were not paid despite the memorandum, and the additional decision dated 30/11/2018 was appealed by the attorneys of the combined plaintiffs … and … within the time limit.
The case is related to the objection to the cadastral determination.
The forest cadastre and 2/B article applications made according to the Law No. 6831 in the region were finalized in 1991. There are correction studies made in accordance with Law No. 4999, which became final on 03/06/2011.
In the examination made by our Chamber, it was decided to remove the additional decision dated 30/11/2018 given by the court on the deemed abandonment of the appeal request of the combined plaintiffs … and …, contrary to the procedure and law, as it was understood that there were sufficient costs and advance payment in the file, the file and its annexes were examined and considered;
Although the court dismissed the lawsuit of the joined plaintiff and the main defendant and decided to register the disputed immovables in the name of the Treasury with the forest status, the status of the immovables in the oldest dated country map and aerial photographs and the status of the immovables in the aerial photographs of 20 years before the date of determination and their position according to the forest classification were not examined in a way suitable for inspection, The bill of sale and other documents relied upon by the plaintiffs were not duly applied, the plaintiff Treasury did not have a case against the disputed immovable property numbered 223 block 15 parcel, it was decided to register the immovable property in the name of the Treasury as a forest, and an attorney fee was assessed in favor of the plaintiff Treasury without taking into account Article 36/A of the Law No. 3402. A judgment cannot be established based on incomplete research and examination.
In that case, the court should obtain the old dated country map, aerial photographs, aerial photographs of 1990-1995 and the management plan, if any, from the relevant places, and the minutes of the commencement of work, work, completion of work and announcement of the results of the suspension of the work regarding all forest surveys and correction of scientific errors according to Law No. 4999, and the approved forest survey map showing the location of the immovable together with the forest survey boundary points should be obtained separately, In the re-examination and discovery to be made by three forest engineers, one agricultural engineer and one science staff to be selected from among the forest engineers who are not currently working in the Ministry of Agriculture and Forestry and its affiliated units, in addition to the previous experts, the bureau forest boundary points according to the location, place, person names, angles and distances written in the minutes and maps, by making use of aerial photographs and country maps used in the preparation of forest cadastre minutes and maps, At least 6-7 forest boundary points at different angles and distances should be found and surveyed, the boundary points related to the forest cadastre should be converted to the same scale, the position of the disputed immovable property according to the forest cadastral map should be shown on the general cadastral map and on the same or close forest boundary lines, if there are parcels subject to the lawsuit, all of them should be shown on the combined map, the statements in the minutes should be evaluated, and it should be determined whether there is a contradiction between the minutes and the survey map, If there is a contradiction, the location of the immovables according to the forest cadastre should be determined in a way that does not leave any room for doubt by obtaining a jointly signed, explanatory, sketched report so that the contradiction between the survey minutes and maps in terms of the disputed parcel will be eliminated by giving value to the survey minutes, and by applying the old dated documents to the disputed immovable and the surrounding land, it should be determined how the previous immovable was characterized in these documents; The status of the immovable against the laws numbered 3116, 4785 and 5658 must be determined; the title deed and
Since the relevant paragraphs of Article 45 of the Law No. 3402, which allows the acquisition of land from the forest by possession, were annulled by the decisions of the Constitutional Court dated 01.06.1988 and numbered 31/13 E.K., 14.03.1989 and numbered 35/13 E.K. and 13.06.1989 and numbered 7/25 E.K., and the remaining paragraphs were annulled by Article 14 of the Law No. 5304, which entered into force on 03.03.2005. Since the remaining paragraphs have been repealed by Article 14 of the Law No. 5304 enacted on 03.03.2005, it should be considered that no land can be acquired from the forest by these means, even if the forest vegetation on a previously forest land is destroyed, only the forest land is considered forest land; the soil structure, vegetation and its surroundings should be examined; during the discovery, under the supervision of the judge, color photographs of the immovable from four directions should be taken, approved and added to the file; the other documents mentioned above should be applied in place by the science and expert forest experts; The scale of the original-color (color photocopy) aerial photographs and the country map should be converted to the scale of the cadastral map, and the scale of the cadastral map should be converted to the scale of the aerial photographs and the country map (using Net-Cad or similar programs), and then the contested immovable should be shown on the country map and aerial photographs together with the surrounding parcels by appliquéring them on each other in a way to include the neighboring and close neighboring parcels, A three-dimensional examination of the aerial photographs by means of a stereoscope should be made to determine the nature and usage status of the immovable subject to appeal and whether the boundaries of disposition are clearly visible or not, and a sufficient report should be obtained, based not only on office examination, but also on practice and research, with scientific data with sketches bearing the approval of the experts, explaining the type, age, distribution and closure rate of the vegetation on the immovable.
If, as a result of the research to be conducted by the method described above, it is determined that the immovables are outside the finalized forest boundaries, and that they are not among the places that are considered forests in terms of their previous and actual status, this time, the conditions for acquisition through possession should be investigated, and an agricultural engineer should be examined as an agricultural expert in the discovery to be made, and it should be determined whether the immovable is in the nature of cultural land that can be acquired by possession, and a report should be obtained in this way; the minutes and bases of the neighboring parcels should be brought and applied, and it should be investigated how they characterize these immovables as boundaries; The witnesses of possession, if any, should be heard at the immovables; when the possession started, for how many years and how it continued, should be asked and clear answers based on exact dates and facts should be obtained; it should be determined whether the conditions of acquisition by possession have occurred for the benefit of the plaintiff until the date of registration; the external sale deeds relied upon by the plaintiffs and the main defendant should be applied in the discovery by the local expert and the opportunity of inspection should be provided by transferring them to the sketch by the science expert, and in accordance with Article 14 of the Law No. 3402. Pursuant to Article 14 of the Law No. 3402, it should be asked from the land registry directorate and the relevant cadastral directorate and the clerical directorate of the civil courts whether any other immovable property has been registered or registered in the name of the plaintiffs and the main intervener within the same working area without registration and documentation, and the provision of Article 14/2 of the same Law amended by the Soil Conservation and Land Use Law dated 3/7/2005 and numbered 5403 should be taken into consideration. The amount of land acquired with and without water should be determined by considering the provision of Article 14/2 of the same Law amended by the Soil Conservation and Land Use Law dated 3/7/2005 and numbered 5403, it should be determined whether the limitation imposed by the Law has been exceeded, it should be taken into consideration that the plaintiff Treasury has no lawsuit against the immovable property numbered 223 block 15 parcel, all the evidence to be collected should be evaluated together and a judgment should be established according to the result to be reached.
According to the acceptance, Article 16 of the Law No. 6099, which entered into force on 19.01.2011, added to the Law No. 3402 with Article 16: “In the lawsuits filed by the State or other public institutions and organizations against the beneficiary of the record in cadastral courts and general courts for the cancellation of the determinations and records formed by the cadastral process, no judicial expenses, including attorney fees, shall be imposed against the defendant. ” in the form of “The provision of Article 36/A of this Law shall also apply to the judicial expenses, including attorney fees, in the judicial decisions that have not yet been executed.” in accordance with the provisions of the provisional Article 11, which was added with Articles 36/A and 17 of this Law.
It is contrary to the procedure and the law to establish a written judgment based on incomplete examination and inadequate expert report without considering the explained issues.
CONCLUSION: For the reasons explained above; the combined plaintiffs …’s immovable properties numbered 223 block 15, 17, 19 and 227 block 9 parcels, the combined plaintiff …’s 223 block 35, 40 parcels
and immovable properties numbered 225 block 6 parcels; the appeal objections of the internal defendant … heir … regarding the immovable property numbered 227 block 10 parcels are accepted and the judgment is DISMISSED regarding these immovable properties, since the appeal request was made with a hearing, the attorney fee of 2540.00. -TL attorney fee to be taken from the defendant Treasury and given to … and … who represented themselves by proxy, and the appeal fee to be returned upon request, it was unanimously decided on 18/02/2020.
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