Liability Arising From The Keeping Of The Land Registry – The Registration In The Name Of The Heirs Is Based On The Court Decision – There Is No Possibility Of Transfer In The Land Registry By Obtaining A Certificate That The Plaintiff Is The Appointed Heir
T.C. JUDICIARY
20th Criminal Chamber
Basis: 2015/2549
Decision: 2016/7501
Decision Date: 27.06.2016
DEED CANCELLATION AND REGISTRATION CASE – LIABILITY ARISING FROM KEEPING THE LAND REGISTRY – REGISTRATION IN THE NAME OF THE HEIRS IS BASED ON A COURT DECISION – THERE IS NO POSSIBILITY OF TRANSFER IN THE LAND REGISTRY BY OBTAINING A CERTIFICATE THAT THE PLAINTIFF IS THE APPOINTED HEIR – JUDGMENT REVERSED
SUMMARY: The plaintiff filed a lawsuit for the enforcement of the will, which was consolidated with the present case after the Court of Cassation’s reversal decision. In the consolidated case, the plaintiff, based on the will, requested that the enforcement decision of the … Civil Court of First Instance numbered … be deemed valid and enforced in terms of parcels numbered 823 and 827, which were decided by the Cadastral Court to be registered and registered in the names of the legal heirs of the heir. Since the parcels numbered 823 and 827 were registered and registered by the cadastral court in the name of the legal heirs who are obliged to fulfill the will, in other words, since the registration in the name of the heirs is based on the court decision, it is not possible to transfer the title deed by obtaining a certificate that the plaintiff is the appointed heir. In that case, while the court should examine the merits of this case and make a decision according to the result to be formed by waiting for the outcome of this case in terms of the compensation lawsuit filed, it was not deemed correct to have decided to dismiss the original and combined file lawsuit on illegal grounds and required a reversal.
(4721 S. Code Art. 1007)
Case: The Supreme Court of Appeals was requested by the attorney of the plaintiff … for the review of the judgment established at the end of the hearing of the lawsuit between the parties, and after it was decided to accept the petition of appeal, which was understood to be in due time, and to reject the request for hearing from the expense, the file was examined and the necessity was considered:
Decision: The counsel for the plaintiff … stated that since the plaintiff is the sole heir of …, the plaintiff is the heir of the lower muris …, and that the said muris is the heir of the … Notary Public dated 29.09.1955. Civil Court of First Instance file numbered … … ‘s will and the contracts between the plaintiff and the plaintiff, and that the 50400/6585600 shares, which is the part to be raised, be registered in the title deed in the name of the plaintiff, and that if this request is not deemed appropriate due to the change of ownership of the deeds, the Land Registry Court did not notify the owners or their heirs on the date of the decision in accordance with the procedure, and ensured the corrupt registration of the title deed by issuing a finalization annotation without legal grounds, and that the administration and the prosecutor’s office, to whom the application was made, did not do their part… The defendants and the defendants who did business and transactions against the plaintiff and knew that the plaintiff was entitled to compensation by declaring that the State should pay compensation on behalf of the State. The defendants, who caused damage to the plaintiff as a result of the common fault of the defendants, who were unjustly enriched, jointly and severally pay the plaintiff the fair value of the parts of the immovable properties subject to the lawsuit that fall to the plaintiff’s share, together with the legal interest to be processed from the date the situation was notified to them, Since the defendant and the other defendants who caused the plaintiff’s loss until the date of the lawsuit due to the failure to carry out the works and transactions to be carried out, the defendant and the other defendants are in possession, the plaintiff’s share of the amounts and the plaintiff’s benefit from the immovables and the profit that the plaintiff was deprived of 1. 000.00.-TL to be collected jointly and severally with legal interest to be accrued from the date of notification of the situation to the defendants.
The defendant attorney argued that … has nothing to do with the lawsuit, and that the lawsuit should be dismissed due to the lack of subjectivity, statute of limitations, prescription period and final judgment.
… … filed a lawsuit with the request that his shares of 33600/6585600 be increased to 84000/6585600 and registered in his name through forced registration, but the plaintiff amended the lawsuit numbered … and stated that they thought that it was an indication of the good faith of the plaintiff that the shares of the muris … … remained in his possession, and that the part to be increased was in return for his work and expenses.
The representative of the defendant … … estate … was duly notified of the lawsuit petition, but no response was given.
In summary in the reversal decision; “According to the scope of the file and the collected evidence, the request is for the cancellation and registration of the title deed based on the will, which was finalized but allegedly not implemented by the Land Registry Court, and if not, compensation, and the plaintiff party stated that they requested a settlement twice due to the non-implementation of the finalized court decision, but it was rejected, whereupon they could not get results from their requests to the District Governorship, Public Prosecutor’s Office and Land Registry Directorate, and explained that due to the negligence of these institutions … The court made a request by explaining that their right to demand compensation from the plaintiff, and the court established a written judgment by taking into account that the plaintiff amended his request as compensation and price in the amendment petition dated 29. 12.2011 dated 29.12.2011 in the petition for amendment, in which the fees were paid, and the court made a written judgment considering that the plaintiff amended his request as compensation and compensation and increased the value to 246.955,83,-TL, the subject of the lawsuit … village … village parcel numbered 823 was formerly parcel 544 and parcel numbered 827 was formerly parcel 551, and similarly, they were formed by forfeiture on 19.3. 1993, leaving her children, the plaintiff … and her 9 siblings as heirs, both the … … estate and the … … estate were duly represented in the lawsuit by their representatives, and the decision of the … Civil Court of Peace dated 17.5. 1983 dated and … numbered decision of the … Civil Court of Peace dated 17.5.1983, in the case of the opening of the will filed by the plaintiff … … against the defendants … heirs 8 persons, the court rejected the decision of the … 2nd Civil Court of First Instance dated 2.7.1981 and numbered 1981/302 decision regarding the annulment of the will in the file dated 2.7.1981 and numbered 1981/302. Civil Chamber of the Court of Cassation, it was decided to issue a certificate of inheritance to the heirs at law in the will issued by … … and to leave the estate temporarily to the heirs at law, and according to this decision, the registration was requested from the Land Registry Directorate, and it was seen that the Land Registry Directorate stated in the land registry records that the transfer was made according to the certificate of inheritance and the registration was made forfeitly, … In the lawsuit filed by the plaintiff … against the other heirs of … … at the … Civil Court of First Instance on 10. 12.1985 against the other heirs of …, it was stated that … bequeathed half of all his property to his wife … and the other half to …, but … did not accept the will, after the rejection and finalization of the annulment of the will case, the certificate of inheritance was given to the heirs by the plaintiff with …. of the … Civil Court of Peace, and their requests for the confirmation of the decision were rejected, 17. 05. 1983, but since the rate of registration of the immovables was not explained in the decision, the land registry could not execute the decision, … … willed all the immovables of … … …, 1/2 of the remaining half share belongs to … as the heir and it was explained that …’s share should be 3/4, and in this way, registration was requested in the name of …, the court deleted the name … … from the title deeds related to 25 pieces of immovable property and decided to register 120 shares to … daughter … and 12 shares to other heirs in proportion to their shares according to 192 shares in line with the expert report, According to the plaintiff’s lawsuit petition and the scope of the file, the legal basis of the plaintiff’s request from …is Article 1007 of the Turkish Civil Code No. 4721. Article 1007 of the Turkish Civil Code numbered 4721, which regulates the responsibility of the State for damages arising from the maintenance of the land registry, and the rules regarding the State’s “responsibility arising from the maintenance of the land registry” will be applied to the rules regarding strict liability / aggravated cause / aggravated objective liability / hazard liability, In order to be able to talk about the responsibility of the State, which is the source of this clear provision of the law, it is necessary to have a causal link between an unlawful act of the official in keeping the land registry and the harmful result, it does not matter whether the official’s act is in the nature of doing or not doing something and whether it is based on fault or not, according to the court judgments relied on by the plaintiff and the evidence collected, the plaintiff … … and it is understood that he has the right of inheritance both by will and certificate of inheritance, and that the representative of the probate on behalf of the other heirs due to his mother … has also consented to this, but the … Civil Court of First Instance, which is relied upon in the lawsuit …. In the court decision numbered 823 (previously 544) and 827 (previously 551) parcels, there is no explanation or provision regarding the immovable properties subject to the lawsuit, there is no subsequent lawsuit filed by the plaintiff regarding these parcels or a court decree concluded in his favor, and it cannot be considered that the decision of the … Civil Court of First Instance dated 19. 12.2009 dated 19.12.2009 and numbered …, which resulted in a procedural dismissal, cannot be considered to create a favorable or unfavorable result, in this case, it cannot be considered that the Land Registry Directorate, District Governorship and Public Prosecutor’s Office are responsible for the non-execution of the court decree that is not related to the parcels subject to the lawsuit in the land registry, in the face of these explanations and the facts determined, according to Article 1007 of the TMK. It is not correct to hold … responsible for compensation according to Article 1007 of the TMK, since there is no decision taken against … … there is no accuracy in holding the … … estate responsible, while the court should have decided to dismiss the plaintiff’s lawsuit in its entirety, it is not correct to have decided to accept it in writing with the justification that is not appropriate to the scope of the file based on similar decisions”.
The court, after complying with the reversal decision, while the trial was continuing, decided to dismiss the original file and the combined case file after the case file filed by the plaintiffs … and … was merged with this file, and the judgment was appealed by the representative of the plaintiff …..
According to the statement in the petition, the lawsuit is related to the request for compensation for the damage incurred if the cancellation of the title deed registration is not possible, according to Article 1007 of the Civil Code.
Although the court has decided to dismiss the main file case by complying with the reversal decision of the 8th Civil Chamber of the Court of Cassation dated 26/03/2013 and numbered …, and to dismiss the combined file case on the grounds that the plaintiff … has requested enforcement, but such a request cannot be made in the form of enforcement and the execution of a decision to be made in this direction will not be possible, the court’s acceptance is not in accordance with the file content.
Namely; although it is mentioned in the reversal decision of the 8th Civil Chamber of the Court of Cassation that the plaintiff …’s lawsuit should be dismissed completely, in accordance with the principle that each case is evaluated in its current state, it is stated that the lawsuit should be dismissed in its current state, taking into account the fact that there is no lawsuit filed by the plaintiff regarding the parcels numbered 823 and 827 subject to the lawsuit in the case subject to the Court of Cassation decision and concluded in favor of or against the plaintiff.
The plaintiff filed a lawsuit for the enforcement of the will, which was consolidated with the present case after the Court of Cassation’s reversal decision. In the consolidated case, the plaintiff, based on the will, requested that the enforcement decision of the … Civil Court of First Instance numbered … be deemed valid and enforced for the parcels numbered 823 and 827, which were decided by the Cadastral Court to be registered and registered in the names of the legal heirs of the heir. Since the parcels numbered 823 and 827 were registered and registered by the cadastral court in the name of the legal heirs who are obliged to fulfill the will, in other words, since the registration in the name of the heirs is based on the court decision, it is not possible to transfer the title deed by obtaining a certificate that the plaintiff is the appointed heir. In that case, while the court should examine the merits of this case, and in terms of the compensation lawsuit filed pursuant to Article 1007 of the CC, a decision should be made according to the result to be formed by waiting for the outcome of this lawsuit, the decision to dismiss the main and combined file lawsuit on illegal grounds was not deemed correct and required a reversal.
Conclusion For the reasons explained above, it was unanimously decided on 27.06.2016 to accept the appellate objections of the plaintiff … attorney and to VACATE the judgment and to refund the appeal fee upon request.
You can access our other article examples and petition examples by clicking here.