If The Case For Elimination Of Partnership Is Finalised, The Case For Determination Of The Encumbrance Cannot Be Filed
8th Civil Chamber 2013/23561 E. , 2014/16474 K.
“Case Law Text”
COURT : Düzce 2nd Civil Court of First Instance
DATED : 27/10/2011
NUMBER : 2011/106-2011/244
O.. Ü… and N… Ü… and their joint ones, the Supreme Court of Appeal has been requested by the plaintiff’s attorney for the review of the judgement dated 27.10.2011 and numbered 106/244 rendered by Düzce 2nd Civil Court of First Instance regarding the dismissal of the case for the determination of the ownership between them; the file was examined and the necessity was considered:
DECISION
In the petition, the plaintiff’s attorney explained that a lawsuit for the elimination of the partnership was filed for the 87 parcel with the case file numbered 2006/1754 Main and 2009/644 Decision of Düzce 2nd Civil Court of Peace, and that it was finalised and approved and finalised, and requested a decision to determine that the ownership of the single-storey house and two boards on the said parcel belongs to the plaintiff.
Defendant H… S.. In the trial session dated 28.06.2011, the defendant H. S. stated that the single storey house and the two buildings on the parcel numbered 87 were built by the plaintiff, but the immovable property was inherited from his father and passed on to us, the heirs.
Although the lawsuit petition was notified to the other defendants, they did not attend the trial sessions and did not respond.
The court decided to dismiss the lawsuit on the grounds that “…the lawsuit for the elimination of the partnership regarding the immovable was filed and the decision was approved and finalised, there was no expropriation, the request is related to the request for the determination of the ownership of the property, the plaintiff has no legal interest in requesting the determination of the legal relationship in cases where it is possible to completely eliminate the need for legal protection in another way….” and the judgement was appealed by the plaintiff’s attorney.
The lawsuit is related to the request of who built the construction on the immovable property.
Although the court decided to dismiss the lawsuit due to lack of legal interest, it is not possible to agree with this reasoning of the court.
Although it was not included in the Code of Civil Procedure, in accordance with the practice of the Court of Cassation, the “principle of legal interest” was accepted and applied as a condition for filing a lawsuit. When the CCP No. 6100 was drafted, this principle of legal benefit, inspired by the practice, was turned into a legal provision. It is seen that the principle of “the plaintiff has legal interest in filing a lawsuit” is counted among the conditions for filing a lawsuit in Article 114/1-h of the CCP, which is titled as the conditions for filing a lawsuit.
In cases where the principle of legal interest is present, it is not necessary to first file a lawsuit in a court and then obtain authorisation from this court in terms of the construction or any work, nor is it necessary to file a lawsuit by first putting something into execution proceedings and then obtaining authorisation from the execution manager after certain stages. Otherwise, it will be in question to close or limit the means of seeking rights.
As a matter of fact, Article 36 of the Constitution, entitled “Freedom to seek justice”, emphasises that “Everyone has the right to claim and defend himself as a plaintiff or defendant before the judicial authorities and to a fair trial by making use of legitimate means and remedies”. It is essential to keep the means of seeking rights open, and restricting or completely closing them cannot be left to the discretion of individuals, institutions and organisations. Article 6 of the European Convention on Human Rights also emphasises the freedom to seek justice and the right to a fair trial. The decisions of the Constitutional Court and the European Court of Human Rights are in this direction.
It is also impossible to ignore Article 90 of the Constitution in this regard. According to paragraph 90/5 of the Constitution; “International treaties duly put into force shall have the force of law. No application shall be made to the Constitutional Court for their unconstitutionality. In case of disputes arising out of differences between the International Treaties on fundamental rights and freedoms duly put into force and the laws on the same subject, the provisions of the International Treaty shall prevail.” It is seen that the provisions of the International Treaty shall prevail in case of differences in provisions on fundamental rights and freedoms. The limitation or closure of the means of seeking rights with this provision is contrary to Article 90 of the aforementioned Constitution.
Apart from this, no one can force another person to file a lawsuit, pursue or act in one way or another, or to show the way.
In this respect, it is not possible to limit the decision to determine the ownership of the encumbrance to two or three reasons as explained in the reasoning of the majority. Moreover, there is no legal basis for this limitation. The important thing is to keep the way open for rights and freedoms. This clearly means limiting the freedom of individuals or institutions and organisations to seek rights. Therefore, it is not possible to agree with this opinion.
8th Civil Chamber, 15.10. 2007 dated 15.10.2007 and numbered 2007/4224 Esas 2007/5537 Karar; “… the plaintiff is not a stakeholder in the immovable property, he purchased a part of the immovable property from one of the stakeholders EXTERNALLY and INVALID ADMINISTRATIVE DEED and built the building subject to the lawsuit, the plaintiff is in the position of a third party, there is no dispute in this regard, the lawsuit for the elimination of the partnership was filed between the record owners (stakeholders),
There is no doubt that if it is decided to resolve the partnership through sale, the improvements on the parcel will be sold together with the immovable (ground), according to this situation, the plaintiff (the owner of the external bill of sale) has a legal interest in determining the value of the house on the immovable and to whom it belongs, in this respect, the court’s decision to reject the plaintiff’s request for the determination of the improvements is not inaccurate… ” was referred for reversal.
The decision of the Local Court to DISMISS was REVERSED with a broader reasoning with the decision of the HGK dated 11.03.2009 and numbered 2009/8-75 Esas 2009/116 Karar. As it is seen, the 8th Civil Chamber accepts that the plaintiff has a LEGAL INTEREST in the case of the determination that the construction was made by the plaintiff, even the plaintiff who purchased the registered immovable property with an invalid external sales contract and who has nothing to do with the title deed record, and the Supreme General Assembly of Laws emphasises that the plaintiff has a legal interest and decides to overturn the decision of resistance.
Again, the reversal decisions of the Supreme 7th Civil Chamber stating that “… the lawsuit for the elimination of the partnership regarding the immovable property has not been filed, there is no expropriation process, in this respect, the legal interest of the plaintiff in filing the lawsuit for the determination of the ownership of the encumbrance cannot be accepted and the lawsuit should be dismissed, the reversal decisions of the HGK dated 05. 10.2012 dated 2012/7-334 Esas 2012/650; 28.03.2014 dated 2013/7-670 Esas 2014/423 (after the lawsuit was filed regarding the property subject to this decision, a lawsuit for the elimination of partnership was filed between the shareholders.
However, legal benefit is a condition of the lawsuit and is sought on the date the lawsuit is filed, and although this is the principle, the HCJK accepted that the plaintiff in such a situation has legal benefit) and 2007/7-830 Esas, 2007/801 dated 31.07.2007 (after the annulment of the local court decision regarding the case for the determination of the ownership of the encumbrance subject to this decision, a lawsuit for the elimination of the partnership was filed between the shareholders. The information shown in brackets with the second decision of the HGK is valid for this decision). With its decision numbered decisions, it has been accepted that the plaintiff has legal interest, and it has not adopted the opinion of the Special Chamber limited to two grounds in the decision of reversal.
As it is understood from the scope of the file, the acceptance decision given about the parcel numbered 87 subject to the lawsuit for the elimination of the partnership was approved by the Court of Cassation, although the immovable is in the nature of a field according to the title deed record among the file, from the information and documents in the file, there is a single-storey house and two boards on the immovable, the defendant H… S…’s statement dated 28.06.2011, there should be no doubt that the plaintiff has a legal interest in filing such a lawsuit.
It is a fact that when the parcel numbered 87, which is subject to joint ownership, is put up for sale, the single-storey house and the two drylands, which are an integral part of it, will be put up for sale together. In such a case, it is beyond any doubt that the plaintiff will be deprived of the essence of the right and will be forced to file other lawsuits, and the plaintiff is obliged to file such a lawsuit in order to receive the money for the one-storey house and two installations from the sale money.
Considering all these explanations, deciding to reject the request on the grounds that the plaintiff does not have legal interest may mean sacrificing the essence of the right to the form.
Pursuant to Article 106/2 of the CCP, it cannot be said that the plaintiff does not have a current benefit worthy of legal protection in filing such a lawsuit.
In the face of these concrete and legal facts, it is not correct to decide to dismiss the lawsuit due to the lack of legal interest, while a positive or negative decision should be made about the plaintiff’s request by collecting the evidence of the parties in line with the claim and defence and by bringing the file subject to the elimination of the partnership and evaluating it together.
With the acceptance of the appeal objections of the plaintiff’s attorney for the reasons explained above, the judgement of the local court shall be DISMISSED in accordance with 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, and the parties shall submit their objections in accordance with Article 388/4 of the Code of Civil Procedure (Article 297 of the Code of Civil Procedure). /ç) and 440/I articles of the Code of Civil Procedure, it was unanimously decided on 19.09.2014 that the appellant may request for correction of the decision within 15 days as of the notification of the decision of the Court of Cassation Chamber and the advance fee of TL 24,30 shall be refunded to the appellant upon request.
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