Decision On The Annulment Of Cadastral Determination
T.C Judiciary 20th Civil Chamber Main: 2017/ 8118 Decision: 2020 / 630 Date of Decision: 11.02.2020
JUDICIARY DECISION
COURT :Cadastral Court
The Court of Cassation has been requested by the plaintiff … Management, the main intervener Treasury and the defendant … 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 appeal petitions, which were understood to be in due time, the file was examined and considered accordingly:
DECISION
During the cadastral survey, parcels numbered 121 block 138 and 121 block 114 in the village of … with an area of 1373.05 m2 and 21.925.35 m2 respectively and with the characteristics of fields
Winner>
It was determined on behalf of the internal defendant … on the basis of possession by prescription.
The plaintiff … Management stated that the forest cadastre made in Tepeli village according to the provisions of the Law No. 3402 amended by the Law No. 5304 was partially announced, but the areas shown in the lawsuit petition, which do not have island and parcel numbers due to the lack of measurement and delimitation, were excluded from the forest boundaries, although they are considered as forests, and filed a lawsuit against the Treasury and the village legal entity with the request to include these areas within the forest boundaries and to register them in the name of the Treasury with forest quality.
Later on, during the cadastral survey of the cultural lands, the determination minutes of the immovables subject to the lawsuit were issued and finalized, and the immovables that were determined without a deed in the name of the internal defendant … as fields with an area of 21925.35 m2 and 1373.05 m2, respectively, numbered 121, block 114 and 138 parcels, and the cadastral minutes of the other parcels subject to the other lawsuit were brought, and they were made defendant by stating that they were defendant due to the filing of a lawsuit within the partial announcement period regarding these places, and in the main lawsuit file, 2008/24 E. numbered 2008/24 E., which is the original case file, the determination owners were made as internal defendants, and the parties were formed and the trial was continued by deciding to divide the file according to the number of determination owners, and the trial was continued by registering to the new case, and the Treasury participated in the case with the claim that the immovable immovables were rocky rocky places.
As a result of the trial conducted by the Court; the Forest Management … Acceptance of the lawsuit of the Forestry Administration with respect to the part of the parcel numbered 121, block 114 in Tepeli village, district of Tepeli, and cancellation of the cadastral determination of the parcel and registration of the immovable in the name of the Treasury with the quality of forest, acceptance of the lawsuit of the Forestry Administration with respect to the part of the parcel numbered 121, block 138 shown with the letter (A) in the science expert report and registration of the 878 m2 part in the name of the Treasury with the quality of forest, It was decided to accept the lawsuit of the intervener Treasury for the 495,05 m2 section shown with the letter (B), to reject the lawsuit of the Forest Management, and to register this section in the name of the Treasury with the quality of raw soil, and the judgment was rendered in favor of the plaintiff … (B) of the parcel numbered 121 block 138 by the Administration and (A) of the parcel numbered 121 block 114 and the parcel numbered 121 block 138 by the intervening Treasury.
As a result of the appeal examination, in the decision of our Chamber numbered 2016/6236 E. – 2016/11596 K., in summary; “Pursuant to the thirteenth paragraph of the provisional Article 1 of the Law No. 6360, it is necessary to establish the party organization by ensuring the participation of the district municipality where the defendant village is affiliated, the relevant metropolitan municipality and the Treasury in the case”. As a result of the trial conducted in line with the decision of reversal, it was concluded that the Forest Management … Acceptance of the lawsuit of the Forestry Administration with respect to the part of the parcel numbered 121 island 114 in Tepeli village, district of Tepeli village, and cancellation of the cadastral determination of the parcel and registration and registration of the immovable in the name of the Treasury with the quality of forest, acceptance of the lawsuit of the Forestry Administration with respect to the part of the parcel numbered 121 island 138 shown with the letter (A) in the science expert report, and registration of the 878 m2 part in the name of the Treasury with the quality of forest, It has been decided to accept the lawsuit of the intervener Treasury for the 495,05 m2 section shown with the letter (B), to reject the lawsuit of the Forest Management, to register this section in the name of the Treasury with the quality of raw soil, and to decide that there is no attorney fee in favor of the Forest Management and the Treasury of Finance, and the judgment has been decided that the plaintiff … The case was appealed by the Administration with respect to parcel (B) of parcel no. 121 island 138 and the merits, by … with respect to the merits, and by the main intervener Treasury with respect to parcel no. 121 island 114 and parcel (A) of parcel no. 121 island 138.
The case is related to the objection to the cadastral determination.
The forest cadastre was carried out in the location of the disputed immovable according to Article 4 of the Law No. 3402, announced and finalized between 06/08/2008-05/09/2008 and the disputed parcel was excluded from the forest area.
According to the scope of the file, the court, in accordance with the reversal decision complied with by the court, there is no inconsistency in the establishment of a judgment in the form of registration in the name of the Treasury with the title of raw soil, since it is understood that the 495.05 m2 section marked with the letter (B) of the disputed immovable property numbered 121 block 138 parcel is not considered as forest. However, with Article 33 of the Law No. 7139, which entered into force on 28.04.2018, after the date of the decision, the Forest Management is exempt from the fees charged according to the Fees Law dated 02/07/1964 and numbered 492, the stamp tax due to the papers issued within the scope of its duties specified in this Law, and the revolving fund service fees arising from the land registry and cadastral transactions, and it is erroneous to award fees against the Forest Management due to the lawsuit filed by the Forest Management, and since these issues do not require a retrial, it is deemed appropriate to approve the judgment with correction.
For this reason; it was decided unanimously on 11/02/2020 to correct the judgment of the court of first instance by removing the 4th subparagraph related to the fee from the judgment and replacing it with the sentence “4-Since the plaintiff … Management is exempt from the fee, there is no need to charge a fee” and the judgment was APPROVED in this corrected form according to Article 438/7 of the HUMK with reference to the provisional Article 3 of the Law No. 6100, and the appeal fee was returned upon request.
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