A Report Should Be Obtained From An Agricultural Engineer On Whether The Immovable Is Irrigated Or Dry Agricultural Land In Accordance With The Purpose Of The Law And A Decision Should Be Made Within The Framework Of The Result To Be Formed
T.C. JUDICIARY
20th Civil Chamber
Main: 2016/3944
Decision: 2016/7541
Date of Decision: 28.06.2016
OBJECTION TO CADASTRAL DETERMINATION – A REPORT SHOULD BE OBTAINED FROM THE AGRICULTURAL ENGINEER IN ACCORDANCE WITH THE PURPOSE OF THE LAW ON WHETHER THE IMMOVABLE IS IRRIGATED OR DRY AGRICULTURAL LAND AND A DECISION SHOULD BE MADE WITHIN THE FRAMEWORK OF THE RESULT TO BE FORMED
SUMMARY: As to whether the immovable subject to the lawsuit is irrigated or dry agricultural land (according to the provisions of Article 3/j of the Law No. 5403 and the amended second paragraph of Article 10 of the Regulation on Immovable Property Delimitation, Determination and Control Works, since irrigated agricultural land is defined as the lands where the water needed by the agricultural plants during the growth period is taken from the water source and met in sufficient quantity and in a controlled manner), a report should be obtained from the agricultural engineer in accordance with the purpose of the law and a decision should be made within the framework of the result to be formed.
(6831 S. K. art. 17) (3402 S. K. art. 14)
Case and Judgment: The Supreme Court of Appeals has been requested by the defendant and the co-defendants …, …, …, … and … 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, the file was examined and considered accordingly:
With the petition dated 26/05/2008, the plaintiff claimed that the areas in … town, … Neighborhood were partially declared in the cadastral works carried out in accordance with the provisions of Law No. 3402 amended by Law No. 5304, and that the areas excluded from the boundary line at points 387, 396, 380, 386, 361, 379, 354, 360 and 300-303 OS, which are adjacent to the parcel of 101 block 3, are among the counted areas, and requested the registration of these immovables in his name. During the land cadastre, the parcels numbered 134 block 1 and 101 block 98 were classified as bushes, 101 block 95, 96, 97, 99, 100, 101, 102, 103 and 104 parcels were classified as fields, 4964,14 m², 715,31 m², 9652,25 m², 4292,34 m², 8048, 06 m², 7816,12 m², 4346,06 m², 9193,80 m², 11,282,75 m², 3154,66 m² and 3093,26 m², cadastral determination minutes were prepared and sent to the court. As a result of the trial conducted by including the owners of the minutes in the case, the court decided to accept the case and to register and register the immovable immovables numbered 134 block 1, 101 block 3, 95, 96, 97, 98, 98, 99, 100, 101, 102, 103 and 104 parcels in the name of the title deed, and the judgment was appealed by the defendant and the co-defendants …, …, … and ……
The lawsuit is related to the objection to the cadastre and cadastral registration.
There were cadastral surveys conducted in the location of the contested immovable property in accordance with the provisions of Article 4 of the Law No. 3402 amended by Law No. 5304 and announced between 25/04/2008 and 26/05/2008.
The decision rendered by the court is contrary to the procedure and the law. Although the defendant relied on the title deed records, the court did not apply the underlying title deed records, in the original report prepared by the expert, the immovables were open and at the same time they were located in a green forest area in the country map dated 1960, and in the additional report received upon return, the oldest dated aerial photograph, the date of which was not reported, showed that the parcel 134, block 1, The parcels numbered 101, 95, 96, 97, 98, 99, 100, 101 and 102 are open spaces covered with meadow grasses, shrubby dwarf roses, spruce beech hornbeam, maple species, leafy and coniferous trees, and the parcels numbered 101, 103 and 104 are mostly spruce species and scattered beech hornbeam, The report states that the immovables in dispute are in a meadow area where there are white maple dwarf trees and shrubs, and there is a contradiction in the report due to the fact that the immovables in dispute are called open in the report, and the immovables are called in the green colored area on the country map, and there is vegetation on the immovables in the aerial photograph, and also the conditions of zoning and possession regarding the immovables are not evaluated, and as a result of the lawsuit filed by the Administration around the parcel numbered 101 block 3, although the immovable numbered 101 block 3 is not a defendant, the court, It is understood that instead of sending the cadastral record of the parcel numbered 101 block 1 to the land registry office to be finalized in the usual way, it was decided to register the immovable as determined.
A judgment cannot be rendered based on expert reports and incomplete research and examination which are not suitable for supervision.
For these reasons; all the circulations and sketches, if any, of the underlying title deed record dated 1289 and numbered 1 since its first formation, all the parcel minutes where it has been revised, if it has not been revised, asking why it has not been revised, all the parcels to which the title deed record is applied and the neighboring parcel minutes and bases, If they are the defendant, the case files, the registration sketch, if any, the neighboring parcel minutes and bases, the original photocopy of the 1/5000 scale land cadastral map showing the immovable subject to the lawsuit and its surroundings and prepared for the first time in that place by graphic or photogrammetry method, and the neighboring parcels adjacent or close to the immovable, samples of cadastral registration minutes and all of the title deeds and tax records applied to these parcels from the day they were first created, the oldest dated country map of the region and the underlying aerial photographs, stereoscopic aerial photographs from 1985-1990 and original color country maps produced based on these photographs, cadastral records and maps are requested from the places where they are located, with the help of an expert committee consisting of an agricultural engineer graduated from the soil department of agricultural faculties, a map-cadastro (Geodesy and Photogrammetry) engineer or science staff and a graduate engineer or engineer, After determining the place subject to the lawsuit in these documents, aerial photographs and the underlying maps should be examined with a stereoscope device and in three dimensions, the nature of the immovable property should be determined in these documents, the date on which the possession started and was completed with the zoning and development should be determined, and these documents and the cadastral map should be examined, If the map is not prepared, the map of the immovable subject to the lawsuit will be prepared in coordinates according to the provisions of the Large Scale Map and Map Information Production Regulation (BÖHHHBÜY), which was put into force by the Decree of the Council of Ministers dated 23/6/2005 and numbered 2005/9070, and the map to be equalized at both 1/5000 and 1/25000 scales and the map prepared with the cadastral map, A report should be obtained from the board of experts, which should include detailed and scientific data from the board of experts, which should include detailed and scientific data from the board of experts, which should determine the actual slope status of the immovable by using topographic and country maps and by measuring with a climeter in the field and by determining the actual slope status of the immovable and evaluating whether the immovable is a clearing within the meaning of Article 17/2 of the Law No. 6831. The report evaluating whether the immovables are open in the sense of Article 17/2 of the Law No. 6831 should be obtained, the underlying title deed records and sketches, if any, should be duly applied to the ground by making use of the neighboring parcel minutes with the help of local experts and witnesses, and if a boundary of the title deed record is limited to changeable as a result of the “Kıran” reading, it should be evaluated according to the actual situation of the land, and if it is limited to changeable, its scope should be determined in full by valuing its area in accordance with Article 20/C of the Law No. 3402, If it is not the scope of the original immovable or forest clearing, it should be accepted that the excess amount was acquired by clearing from the forest on the border, and if there are parcels that have been revised, it should also be investigated whether the title deed has lost its legal value within the scope of Law No. 4785 by deducting the area of these parcels.
If it is determined that the disputed immovables are not within the scope of the title deed record and that they are not among the previously mentioned places, the date on which the development and improvement was started and completed, from whom to whom it was left, when the possession started and how it was continued and whether it was suitable for its economic purpose, based on the material facts and in detail, should be asked from the local experts and the witnesses of the parties to be heard at the immovable, and the accuracy of the words of the local experts and witnesses should be checked by the expert committee report to be prepared based on the documents mentioned above and which are the truth itself, During the discovery, color photographs showing the current status of the immovable from various aspects should be taken and approved and the immovable should be placed in the case file by showing it on the photograph, if there are administrative investigation and unfair occupation (ecrimisil) minutes prepared by the authorities before or after the date of filing the lawsuit, these minutes should be applied instead of these minutes and the persons whose names are written in the minutes should be heard as witnesses, considering that the 40 and 100 acres restriction survey written in Article 14/1 of the Law No. 3402 should be made by taking into account the provisions of the second paragraph of the same article amended by the Soil Conservation and Land Use Law dated 3/7/2005 and numbered 5403. Considering that the 40 and 100 acres restriction research written in Article 14/1 of the Law No. 3402 should be carried out by taking into consideration the provisions of the second paragraph of the same article amended by the Soil Conservation and Land Use Law No. 5403 dated 3/7/2005, whether there is an immovable property that has been registered and registered based on undocumented possession within the same study area in terms of the person or persons on whose behalf the registration decision will be made and other heirs and their heirs, and if so, its type, The parcel numbers and amount should be asked separately from the Land Registry and the relevant Cadastral Directorates and from the Civil Court Registry Offices whether there is a registration case filed by the same persons or not, and if necessary, samples of the determination minutes and title deed records or registration case files should be brought and examined, and whether the immovable subject to the lawsuit is irrigated or dry agricultural land or not (according to the provisions of Article 3/j of the Law No. 5403 and the second paragraph of the amended Article 10 of the Regulation on the Delimitation, Determination and Control Works of Immovable Property). According to the provisions of Article 3/j of the Law No. 5403 and the amended second paragraph of Article 10 of the Regulation on the Delimitation, Determination and Control Works of Immovable Properties, irrigated agricultural land is defined as the land where the water needed by the agricultural plants during the growth period is taken from the water source and met in sufficient quantity and in a controlled manner), a report should be obtained from the agricultural engineer in accordance with the purpose of the law and a decision should be made within the framework of the result to be formed.
It is contrary to the procedure and the law to establish a written judgment with incomplete examination without considering the issues explained.
Conclusion For the reasons explained above; it was unanimously decided on 28.06.2016 to overturn the judgment by accepting the appeal objections of the defendant, internal defendants …, …, …, … and …, and to refund the appeal fee upon request.
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