The Case Is Not One Of The Cases That Should Be Transferred To The Cadastral Court As It Is A Case Requesting Cancellation And Registration Of Title Deeds For Ownership
T.C. JUDICIARY
20th Civil Chamber
Basis: 2015/15795
Decision: 2016/7531
Date of Decision: 28.06.2016
REQUEST FOR CANCELLATION AND REGISTRATION OF TITLE DEED – THE CASE IS A LAWSUIT FOR CANCELLATION AND REGISTRATION OF TITLE DEED REGARDING PROPERTY AND IS NOT ONE OF THE CASES THAT SHOULD BE TRANSFERRED TO THE CADASTRAL COURT – THE COURT IN CHARGE OF RESOLVING THE DISPUTE IS THE CIVIL COURT OF FIRST INSTANCE
SUMMARY: The case is a lawsuit for the cancellation and registration of title deed regarding ownership and is not one of the cases that should be transferred to the cadastral court. Therefore, the competent court for the resolution of the dispute is … 1st Civil Court of First Instance. Pursuant to Articles 21 and 22 of the CCP, … 1st Civil Court of First Instance should be designated as the place of jurisdiction.
(Art. 2 of 6831 S. Code) (Art. 22, 27, 41 of 3402 S. Code) (Art. 21, 22 of 6100 S. Code) (Art. 9 of the Regulation on the Procedures and Principles to be Followed in the Revision of Cadastral Maps and Making the Necessary Corrections in the Land Registry)
Case and Decision: In the lawsuit filed between the parties regarding the immovable property law, all documents in the file sent for the determination of the jurisdiction due to the lack of jurisdiction decisions made separately by … 1st Civil Court of First Instance and … Cadastral Courts were examined and considered accordingly:
In the petition of lawsuit, the plaintiff’s attorney, in summary; … … claiming that the immovable property with parcel numbered 1256 in the village of … … was registered in the name of the defendants, and that during the cadastral surveys carried out in 1993, 2271 m² of the immovable property subject to the lawsuit was excluded from its borders according to Article 2 / B of the Law No. 6831, and requested and sued for the registration of this part in his name with the division of this part.
… The … 1st Civil Court of First Instance issued a decision of non-jurisdiction on the grounds that the cadastral court has jurisdiction since a report was issued as a defendant in accordance with Article 22/2-a of the Law No. 3402 on the disputed immovable property while the lawsuit was pending.
… Cadastral Court, on the other hand, ruled for lack of jurisdiction on the grounds that the case is related to ownership and the civil court of first instance has jurisdiction.
Article 27/1 of the Cadastral Law No. 3402 stipulates that “The duty of these courts ceases on the date the cadastral record is issued for the immovable property regarding the cases related to the cadastre that are pending before the local civil courts and have not yet been finalized, and the files of the cases are transferred to the court ex officio.” In order for the provision to be applicable, the case in the general court must involve a dispute that will fall within the scope of the cadastral activity carried out.
Pursuant to Article 22/2-a of the Law No. 3402, the purpose of the implementation cadastre is to “reorganize the cadastral maps that have lost the quality of application in order to eliminate the errors arising from the delimitation, measurement, drawing and calculations related to the land registration, cadastral or amendment procedures, that are insufficient due to technical reasons, that are found to be deficient or that do not show the boundaries on the ground in accordance with the truth, and to make the necessary corrections in the land registry”. As can be seen, the purpose and scope of the implementation cadastre is to eliminate technical errors regarding the boundaries of immovable properties on cadastral maps. In that case, the cases that may be transferred from the general courts due to the implementation cadastre must be related to boundary disputes; in other words, they must be of a nature that may result in a change in the boundaries and/or surface areas of the immovable immovable immovables on the survey map as a result of the final decision to be rendered. As a matter of fact, in Article 9/a of the Regulation on Article 22/2-a (Regulation on the Procedures and Principles to be followed in the Reorganization of Cadastral Maps and Making the Necessary Corrections in the Land Registry), the cases that should be transferred from the general courts are explained as “border or surface area related” cases.
The judgment rendered as a result of the lawsuit filed in the general court regarding ownership does not change the cadastral boundaries (diameters) of the immovables. Therefore, title deed annulment and registration cases regarding ownership are not among the cases that should be transferred to the cadastral court due to the implementation cadastre.
The cases that need to be transferred within the scope of the implementing cadastre are “deed cancellation and registration cases requesting the change of the common boundary”, “cases filed based on Article 41 of the Cadastral Law”, “cases for the correction of the area written in the land registry” and “cases arising from the duplicate cadastre within the scope of Article 22/1 of the Law No. 3402”.
In the concrete case, the lawsuit is a lawsuit for cancellation and registration of title deed for ownership and is not one of the cases that should be transferred to the cadastral court. Therefore, the competent court for the resolution of the dispute is … 1st Civil Court of First Instance.
Conclusion For the reasons explained above, it was unanimously decided on 28.06.2016 to determine … 1st Civil Court of First Instance as the Jurisdictional Court in accordance with Articles 21 and 22 of the CCP.
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