Deed Cancellation And Registration Case – The Inheritors Have Acquired The Status Of Parties In The Case – Decision On The Necessity Of Dismissing The Case Due To The Absence Of Hostility
T.C. JUDICIARY
8th Civil Chamber
Basis: 2016/2582
Decision: 2016/8703
Decision Date: 12.05.2016
DEED CANCELLATION AND REGISTRATION CASE – THE HEIRS HAVE TAKEN THE PARTY STATUS IN THE CASE – THE CASE SHOULD BE DISMISSED DUE TO LACK OF HOSTILITY – REVERSAL OF THE JUDGMENT
SUMMARY: The lawsuit is related to the request for cancellation and registration of the title deed filed pursuant to the article of the TMK. As a rule, in deed cancellation and registration cases, the lawsuit is filed by directing the lawsuit to the owner of the registration, or if the owner or owners of the registration are deceased, to their heirs. In the lawsuit, the heirs of the owner of the registration are the parties. The court included … in the lawsuit on the grounds that it is a legal adversary, despite the fact that the heirs are parties to the lawsuit. In the title deed cancellation and registration cases filed based on the paragraph of the TMK, only in the event that the record owner dies without leaving any heirs, the lawsuit is filed by directing the lawsuit to … as the last heir in accordance with the article of the TMK, or if this situation is understood later, the lawsuit is directed to … in accordance with the aforementioned article. In the concrete case, since the heirs have taken the title of party in the case, … has no animosity in the case at hand. For this reason, while the lawsuit should be dismissed for the defendant … due to lack of hostility, it was not correct to decide to accept the lawsuit for … as well. The judgment must be reversed.
(4721 S. Code Art. 501, 713, 724)
Case: … and … and their joint … and the acceptance of the cancellation and registration of title deed lawsuit between … and … and their joint …, the judgment numbered … given by the … 2nd Civil Court of First Instance on the acceptance of the lawsuit was requested to be examined by the defendant’s attorney in due time; the file was examined and the necessary was considered:
The plaintiff’s attorney, explaining that it is not clear when the owner of the immovable registered in parcel …, which is registered in the title deed in the name of … Efendi heirs and has been in the possession of the plaintiff since 1975, died, requested a decision to cancel the title deed of the immovable in accordance with Article 713/2 of the TMK and to register it in the name of the proxy, and if this request is not possible, to register it by assignment in accordance with Article 724 of the TMK.
The attorney of the defendant … defended the dismissal of the case by explaining that he did not have the capacity of a party in the case, and the other defendants, who are the heirs of the registered owner, did not attend the trial sessions.
The court decided to accept the lawsuit on the grounds that the conditions of Article 713/2 of the TMK were met for the benefit of the plaintiffs, and to cancel the title deed of the immovable property with parcel numbered … and to register it in the name of the plaintiff; and the judgment was appealed by the defendant …’s attorney.
According to the statement in the petition and the entire file scope, the request is a deed cancellation and registration case regarding the transfer of ownership filed in accordance with paragraphs 713/1 and 2 of the TMK based on the legal reason “the owner died 20 years ago…” in paragraph 713/2 of the TMK.
1-The immovable subject to the case was previously registered in the name of the heirs of the dead … efendi, based on the title deed dated 977 Muharram 286 and numbered 91-1 in the land surveying works carried out in 1959 as … parcel, and upon the conclusion and finalization of the lawsuit filed upon objection to the cadastral determination, it was registered to the title deed in the name of the heirs of Ishakoğlu … efendi on 28.2.1978. Later, with the renewal works, the immovable became parcel …parcel and was registered in the name of the same owner on 29.1.1999. No transfer was made in the land registry records until the date of the lawsuit. Since there is no inconsistency in the decision to accept the lawsuit on the grounds that the conditions specified in Article 713/2 of the TMK have been met in terms of the plaintiff, the other appellate objections of the defendant … attorney other than the issues stated below are rejected,
2- As for the other appellate objections of the defendant …’s attorney;
The lawsuit is related to the request for cancellation of title deed and registration filed pursuant to Article 713/2 of the TMK. As a rule, in deed cancellation and registration cases, the lawsuit is filed by directing the lawsuit to the owner of the registration, or if the owner or owners of the registration are deceased, to their heirs. In the lawsuit, the heirs of the owner of the registration are the parties. The court included … in the lawsuit on the grounds that it is a legal adversary, despite the fact that the heirs are parties to the lawsuit. In deed cancellation and registration lawsuits filed based on paragraph 713/2 of the TMK, only in the event that the registered owner dies without leaving any heirs, the lawsuit is filed by directing the lawsuit to … as the last heir in accordance with Article 501 of the TMK, or if this situation is understood later, the lawsuit is directed to … in accordance with the aforementioned article. In the concrete case, since the heirs have taken the party status in the case, … has no animosity in the case at hand. For this reason, while the lawsuit should be dismissed for the defendant … due to lack of hostility, it was not correct to decide to accept the lawsuit for … as well.
CONCLUSION: Since the appeal objections of the defendant …’s attorney are deemed appropriate for the reasons explained in subparagraph 2 above, the judgment will be DISMISSED pursuant to Article 428 of the Code of Civil Procedure No. 1086 with reference to the Provisional Article 3 of the Code of Civil Procedure No. 6100, the other appeal objections of the defendant …’s attorney will be DISMISSED since they are not deemed appropriate for the reasons written in subparagraph 1, and the parties will be subject to Article 388/4 of the Code of Civil Procedure (Article 297 of the Code of Civil Procedure). /ç) and pursuant to Article 440/1 of the Code of Civil Procedure, it was unanimously decided on 12.05.2016 that a request for correction of the decision can be made within 15 days as of the notification of the Supreme Court of Appeal Chamber’s decision.