Deed Cancellation And Registration Case – Decision On The Requirement To Obtain A Report From The Agricultural Engineer On Whether The Immovable Is Irrigated Or Dry Agricultural Land In Accordance With The Purpose Of The Law
T.C. JUDICIARY
20th Civil Chamber
Main: 2016/2639
Decision 2016/4359
Decision Date: 12.04.2016
DEED CANCELLATION AND REGISTRATION CASE – A REPORT SHOULD BE OBTAINED FROM THE AGRICULTURAL ENGINEER ON WHETHER THE IMMOVABLE IS IRRIGATED OR DRY AGRICULTURAL LAND IN ACCORDANCE WITH THE PURPOSE OF THE LAW – A DECISION SHOULD BE MADE BY EVALUATING ALL THE EVIDENCE TOGETHER
SUMMARY: In the case, whether the immovable subject to the lawsuit is irrigated or dry agricultural land, according to the provisions of Article ……….. of the Law No. 5403 and the second paragraph of the amended Article ………… 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 then all the evidence collected should be evaluated together and a decision should be made according to the result.
(Art. 713 of the Law No. 4721) (Art. 16 of the Law No. 3402) (Art. 17 of the Law No. 6831) (Art. 3 of the Law No. 5403) (Art. 10 of the Regulation on the Delimitation, Determination and Control of Immovable Property)
Case and Judgment: The Supreme Court of Appeals has been requested by the defendants … and … … … for the review of the judgment established at the end of the hearing of the lawsuit between the parties, and the file was examined and considered accordingly after it was decided to accept the appeal petition, which was understood to be in due time:
The plaintiff, in the petition of lawsuit, claimed that the immovable property located in the village of …, the boundaries of which he declared, was not registered in the title deed, and that the conditions for acquiring immovable property through acquisitive prescription possession were met, and filed a lawsuit for registration in his name according to Article 713 of the Civil Code.
The court decided to accept the lawsuit and to register the title deed of the 2302,71 m² area shown with (A) in the surveyor’s sketch dated 23.05.2012 within the parcel numbered 2235 in the name of the plaintiff, and the judgment was appealed by the defendants … and … … ….
According to the statement in the petition, the lawsuit is related to the request for registration of the immovable property according to Article 713 of the Civil Code.
Where the contested immovable property is located, there is a forest cadastre made in 1948 and application, Article 2 and Article 2/B studies finalized in 1977 and 1988. The land survey was finalized in 1960.
During the trial, on 04/01/2012, the place where the disputed immovable was located was registered to the title deed in the name of … with the parcel number 2235 and an area of 30.651,27 m² as an olive grove.
Although the court decided to accept the lawsuit on the grounds that the disputed immovable property is not considered as a forest, the examination and research conducted is not sufficient for the judgment. Namely, the report of the forest expert, which was taken as a basis for the verdict, could not be audited since all documents and maps regarding the forest survey conducted in the region were not brought to the file, and it is not sufficient for the verdict since the disputed immovable is not shown together with the parcels around it on the country map and the date of the aerial photograph applied is not specified. Moreover, the fact that an immovable property is outside the boundaries of the finalized forest cadastre is a separate issue, and whether the conditions for acquisition by possession are met or not are separate issues. … claims that the conditions of acquisition did not occur, these issues should be investigated.
In that case, the court should take the original photocopy of the 1/5000 scale land cadastral map showing the location of the immovable subject to the lawsuit together with its neighbors, and the minutes of the commencement, work, completion and announcement of the results of the suspended announcement of the results of the work regarding the forest designations made in the region, and the approved forest designation map samples showing the location of the immovable together with the forest designation boundary points, Again, the oldest dated country map and aerial photographs, stereoscopic aerial photographs taken on two separate dates 15 – 20 years before the date of the lawsuit, and original colored country maps produced on the basis of these photographs were requested from the places where they were found, and these documents were examined by an expert committee consisting of an agricultural engineer graduated from the soil department of agricultural faculties, a map-cadastro (geodesy and photogrammetry) engineer and three forestry engineers, After determining the location 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 zoning and encroachment and possession started and completed should be determined, these documents and the cadastral map should be equalized both in 1/5000 and 1/25000 scales and the cadastral map and the map issued with the cadastral map should be equalized, A report should be obtained from the board of experts, including detailed and scientific data, showing the actual slope status of the immovable property by using topographic and country maps, including aerial photographs and original colored country maps, showing the location of the disputed immovable property by being appliqued on each other in a way to include the neighboring and near neighboring immovable properties;
Determining that it is one of the public properties that will not be subject to private ownership specified in Article 16 of Law No. 3402, allocated to public service, located in the areas covered by the master or applied zoning plans of provinces, districts and towns, and in the cases of objection to the cadastral determination, from the places that are not possessed and disposed of according to the aerial photographs taken 20 years before the date of the cadastral determination minutes and the country maps produced from these photographs or the cadastral maps prepared by photogrammetry method, From the date of finalization of the cadastral determination and registration exclusion until the date of filing the registration case, 20 years of possession period should not have passed, whether the forest cadastre has been finalized in that place or not, and the immovable should not be in the position of 17/2 and 20. 16/1-i of the Forest Cadastre and 2/B Implementation Regulation published in the Official Gazette dated 11.2012.
In the absence of the above-mentioned conditions in the concrete case, what was the prior history of the immovable property, the date on which it was started and completed if zoning and reconstruction was made, from whom to whom it was inherited, when the possession started and how it was continued and whether it was suitable for its economic purpose, based on material facts and in detail, The local experts and the witnesses of the parties should be asked to be heard at the beginning of the immovable, 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, and the minutes and bases of the neighboring parcels should be brought and applied; 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 the immovable on the photograph, and the 40 and 100 acres restriction research written in Article 14/1 of the Law No. 3402 should be made by considering 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. 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 dated 3/7/2005 and numbered 5403, it should be investigated whether there are immovable properties that have been identified 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, their type, parcel numbers and amount, The land registry directorates and the relevant cadastral directorates and, again, whether there is a registration case filed by the same persons or not, should be asked separately from the civil court registry offices and, if necessary, samples of the determination minutes and land registry 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 amended second paragraph of 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, since 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 then all the evidence collected should be evaluated together and a decision should be made accordingly.
Conclusion For the reasons explained above, it was unanimously decided on 12.04.2016 to overturn the judgment by accepting the appeal objections of the defendants … and … and to refund the appeal fee upon request.