Determination Of Property Ownership
T.C. JUDICIARY
8th Civil Chamber
Basis: 2014/506
Decision: 2014/18999
Date of Decision: 23.10.2014
THE CASE FOR THE DETERMINATION OF THE OWNERSHIP OF THE OBJECT – IT IS NOT POSSIBLE TO SELL THE OBJECT SEPARATELY FROM THE GROUND OF THE IMMOVABLE – THE ONE WHO BUYS A SHARE OF THE IMMOVABLE PROPERTY IS ALSO THE OWNER OF THE OBJECT ON IT IN PROPORTION TO HIS SHARE – THE JUDGMENT SHOULD BE REVERSED
SUMMARY: It is not possible to sell the improvements separately from the ground (land) of the immovable property. As such, in terms of the peach trees, which are in the nature of a building structure, the plaintiff M.. A.. Since A… purchased and used this part and took over the right of the seller, it was not deemed correct to decide to dismiss the case, while it should have been decided to accept the case.
(6100 S. Code Art. 26) (1086 S. Code Art. 74) (4721 S. Code Art. 684, 688, 718)
Case: Ş… A… and A… A… and their joint, and in the joined file, the plaintiffs M.. Ç… partially accepted and partially dismissed the lawsuit for the determination of the ownership of the muhtesat between the defendant and the plaintiffs in the joint file, the Supreme Court of Appeals has been requested by the defendant and the plaintiff’s attorney in the joint file; the file has been examined and considered accordingly:
Decision: The plaintiff’s attorney summarized in the petition of lawsuit; the lawsuit was filed through the file numbered 2011/263 Esas of the Buldan Civil Court of Peace for the elimination of the commonality of the immovable property numbered 352 parcel subject to the lawsuit, some expenses were made by the attorney for the part specified as a vineyard on the immovable, a high vineyard system was planted, an irrigation system was laid 500 meters ahead, the high system costs (concrete pole, wire, T iron, labor and expenses) were covered by the attorney for the high system, and requested the determination of the aforementioned installations and their current values by the expert.
The defendant-combined case plaintiff M.. Ç… attorney stated in the petition of lawsuit that a lawsuit was filed through the file numbered 2011/263 Esas of the Buldan Civil Court of Peace for the elimination of the partnership of the immovable property numbered 352 parcel subject to the lawsuit, that the representative planted a high system vineyard on his own inheritance share, that during the trial, the defendant F.. K… during the proceedings, the defendant F… K… appropriated the peach trees in the part he actually used, and requested a decision to determine that the peach trees and the high system vineyard on the immovable property and the useful expenses belong to the attorney. In his statement at the trial session for the main lawsuit, he defended the dismissal of the lawsuit.
Defendant S… Ç… and R… Ç… defended the dismissal of both cases in their statements at the trial session, explaining that the plaintiff Şahin dismantled the vineyard left by his father and made a new vineyard, and the plaintiff Mehmet Ali turned the empty field into a vineyard.
Defendant M.. A…; plaintiff Ş.. A… planted a vineyard 20 years ago on the subject matter of the lawsuit, that the plaintiff Ş… used his own share, that he had nothing to say to the plaintiff Ş…’s lawsuit, but that he accepted the lawsuit of the plaintiff M… Ç.. Ç…’s lawsuit, and defended the dismissal of the combined lawsuit.
Defendant A.. A…; stated that he was the father of the plaintiff Ş…, that he planted the vineyards subject to the lawsuit 20-25 years ago, but that the plaintiff’s son helped him in the vineyard works, and that the plaintiff in the joined case, M… Ç… planted the vineyard that is the subject of the lawsuit last year, explaining that the plaintiff Ş.. A…’s lawsuit is accepted; the plaintiff in the joined case, M.. A.. Ş.’s lawsuit should be dismissed.
The court partially accepted the lawsuit in terms of the main lawsuit and dismissed the lawsuit of the plaintiff Ş. A. Ş. in Denizli Province, B… District, K.. Village, … parcel numbered immovable in Denizli Province, B… District, K… District, … parcel numbered immovable, the high system vineyard and drip irrigation facility in the area shown with (B) in the science expert report belonged to the plaintiff’s heir A… A. belongs to the plaintiff’s inheritor A. A…, and the case is partially accepted in terms of the combined case and the case is partially accepted and the case is partially accepted in Denizli Province B… District, K.. Village, B… District of Denizli Province, K… Parcel numbered 352, it was determined that the high system vineyard in the area shown with (E) in the science expert report belonged to the plaintiff M… Ç… and to reject the claim for the surplus, the judgment was signed by the defendant-combined case plaintiff M.. Ç… appealed in terms of the main case and the combined case.
In terms of the main lawsuit, the defendant-merging lawsuit plaintiff M..A.. A.’s attorney’s appeal objections are examined;
Although the court ruled that the plaintiff Ş… claimed in the petition that the beneficial expenses were incurred by him, and that the construction works were constructed by the plaintiff Ş…’s father A.. A…, but it is not possible to agree with this opinion of the court. Namely; from the collected evidence and the entire file scope; the immovable property numbered 352 parcel subject to the lawsuit was owned by the defendant F… K., the plaintiffs of the main lawsuit and the joined lawsuit and the defendants, and the vineyard and the irrigation system for the vineyard, which is shown with the letter (B) in the technical expert report on the immovable property, are registered in the title deed as “field” in shares in the name of the plaintiff Ş.. A…’s father A.. A…, the father of the plaintiff Ş. A… A… has a 1/12 share in the immovable property subject to the lawsuit and is a defendant in the main lawsuit and the consolidated lawsuit. It should be noted immediately that; according to Article 26 of the CCP No. 6100 (Article 74 of the HUMK); the court is bound by the claims and defenses of the parties and their demands. It is not possible for the court to award more than the claim or anything else. In the concrete case, the father of the plaintiff Ş.. A…’s father A.. A… does not yet have the title of the inheritor, moreover, he has the title of defendant in the main and combined cases, and A… A… has not filed a duly filed lawsuit and claim by A… A…, the court, with the written justification, determined that the encumbrances subject to the lawsuit belong to A… A… A… is contrary to the procedure and the law.
The attorney of the defendant-complaint plaintiff M.. As for the examination of the appellate objections of the attorney of A..A.;
From the content of the lawsuit petition and the collected evidence, it is clear that the peach trees subject to the lawsuit for determination were planted by F… K…, the plaintiff M.. A…A… claimed that the plaintiff M.. K…, the previous shareholder, and filed the lawsuit. It should be noted immediately that; according to the provision of Article 684 of the Turkish Civil Code No. 4721 regarding the scope of the right of ownership, whoever owns a thing also owns the integral parts of that thing, and according to the provision of Article 718, immovable property includes the land and the materials on the land as integral parts. Again, as explained in Article 688 of the same Law, in shared ownership, more than one person owns the whole of a thing that is not materially divided with certain shares. Considering the explained legal facts, the person who purchases a share of the immovable property shall also be the owner of the improvements on the immovable in proportion to his/her share. It is not possible to sell the improvements separately from the ground (land) of the immovable. As such, in terms of the peach trees, which are in the nature of a fixture, the plaintiff M.. A.. A… purchased and used this part and took over the right of the seller, it was not deemed correct to decide to reject it, while it should have been decided to accept it.
Separately, it has been understood that the vineyard vertebrae grown by the plaintiff Mehmet, which are the subject of the joined case, were planted during the trial and they are not in the nature of a property. Although it was not deemed correct for the court to make an acceptance decision in terms of the aforementioned vineyard oaks, it was not made a reason for reversal in terms of the appellant’s status.
Conclusion The defendant-complaint plaintiff M.. The appeal objections of the attorney of A..A… are appropriate for these reasons. With its acceptance, the judgment shall be annulled pursuant to Article 428 of the CCP No. 1086 with reference to the Provisional Article 3 of the CCP No. 6100, the other issues shall not be examined for the time being, and the parties shall submit to the provisions of Article 388/4 of the CCP (Art. 297 of the CCP). /ç) and 440/I articles of the Code of Civil Procedure, it was decided unanimously on 23.10.2014 that the request for correction of the decision can be made within 15 days as of the notification of the decision of the Court of Cassation Chamber and the advance fee of 149,90 TL shall be refunded upon request. (¤¤)
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