It Can Be Claimed That The Registrations Created Before Based On The Decision On Remand Of The Trial Are Corrupt
1st Civil Chamber 2020/3148 E. , 2020/5869 K.
“Case Law Text”
COURT OF FIRST INSTANCE
At the end of the land deed cancellation and registration case between the parties, the decision of the local court regarding the rejection of the case was appealed by the plaintiffs of the original and combined case within the legal period, the file was examined, the report of the Examining Judge … was read, his explanations were listened to, and the necessity was discussed and considered;
-DECISION-
The lawsuit is related to the request for cancellation and registration of title deed based on the legal ground of improper registration.
The plaintiffs of the main and combined lawsuit claimed that the defendants did not notify their real addresses and concealed the transactions from them with irregular notifications in the files for the elimination of the partnership and the subsequent sale of the three pieces of immovable properties left by their joint heirs … Mühsürler, and that they purchased the parcels 3 and 5 from the tender and transferred them to themselves, and that the registration provided in this way was corrupt, and requested a decision to cancel the title deeds and to register them in the name of all heirs.
The defendants stated that the transactions were duly and valid and defended the rejection of the lawsuit.
The court decided to dismiss the lawsuit on the grounds that the transactions in the files for the elimination of the partnership and sale were duly executed, the plaintiffs received their share of the money without any reservation, and the lawsuit filed four years later cannot be accepted in good faith. From the file content and collected evidence:
…) While the parcels numbered 3 and 5 and the out-of-suit parcel numbered 97 were registered in the name of … Mühsürler, the heir of the parties, it was decided to eliminate the partnership through the sale of immovables numbered 3, 5 and 97 parcels as a result of the 1996/590 Es.s. lawsuit for the elimination of the partnership filed by the heirs … by naming the other heirs as defendants (26.11.1996), and the address of all parties was shown as the same address in the lawsuit;
2) The sale of the parcels numbered 3 and 5 from the parcels decided to be sold was requested based on the decision for the removal of the dispute, and in the sale file numbered 2000/9, in the second tender dated 02.12.2002, it was tendered in the names of the defendants of the case at hand …, … and … and registered to the title deed with …/4 shares each, and in the sale file, the address of all heirs was shown as the same address in the case for the removal of the partnership; subsequently, the two parcels in question were subjected to zoning application and many parcels were formed;
3) The heirs … (the plaintiff of the main case at hand) and … filed a lawsuit against the defendants on 11.04.2003 for the termination of the 2003/208 Es.s. tender, and at the end of the trial, the lawsuit was dismissed on the grounds that the announcement made in the newspaper would replace the notification;
4) Upon the complaint made by …, one of the heirs, to the public prosecutor’s office, a public case was opened against the defendants with indictments dated 09.04.2003 and 16.05.2003 … …. At the end of the trial, it was ruled that the defendants … and … were sentenced for the offence of “forgery of official documents” due to the fact that they caused the notification document to be issued in a false and unrealistic manner by declaring a false address (12.10.2006); Upon the appeal of the file,
the 11th Criminal Chamber of the Court of Cassation Criminal Chamber of the Court of Cassation decided to dismiss the public case on the grounds that “the indictments demanded the defendants to be sentenced for the offence of ‘opposition to the Law on Notification p. 7201, no case was filed for the offence of forgery of official documents, and the statute of limitations for the offence of opposition to the Law on Notification p. 7201 has expired” (13.09.2012);
is.
5) The heirs … and … on 03.04.2003 … …. With the 2003/173 Es.s. lawsuit for the return of the proceedings filed at the Civil Court of Peace, 1996/590 Es.s. and 1996/590 Es.s. izaleyi şüyuu case due to irregular and invalid notifications, and as a result of the trial,
″ … In the concrete case, although the defendants knew the addresses of the plaintiffs in the case of the elimination of the aforementioned partnership and subsequently in the sale file, they fraudulently and untruthfully reported their own commercial business addresses as the addresses of the defendants, notifications were made to their own business addresses, and notifications were made fraudulently to the same address in the sale file, the sale of immovable properties was fraudulently made in the name of the defendants without the plaintiffs’ knowledge of the lawsuit for the elimination of the partnership and the sale file,
a judgement was issued regarding the punishment of the defendants for the crime of forgery of official documents due to these actions, the defendants committed fraudulent acts by deliberately declaring the wrong address, the defendants committed fraudulent acts in accordance with Article 375 of the CCP. Article 375 of the Code of Civil Procedure …. paragraph h subparagraph ”
h) the party in whose favour the judgment was rendered has engaged in fraudulent behaviour affecting the judgment”, it is understood that the defendants have victimised the plaintiffs by making an irregular notification by engaging in fraudulent behaviour, it is understood that the element of fraud, which is one of the reasons for the return of the proceedings in the HMK, has occurred and this is a reason for the return of the proceedings…″, it was decided to accept the request for the return of the proceedings on the grounds that the decision was approved by the Court of Cassation …. Civil Chamber of the Court of Cassation and finalised on 07.01.2020; it is understood.
It should be noted immediately that, within the framework of Article 134 of the Enforcement and Bankruptcy Law (EBL), it is undoubtedly that there is no legal obstacle to file a deed cancellation and registration lawsuit by claiming that the registration based on the property acquired as a result of the tender is corrupt.
On the other hand, pursuant to Article 18 of the EBL, the enforcement proceedings are subject to simple procedure. In the second paragraph of Article 134 of the same law, it is regulated that the cancellation of the tender may be requested from the execution court within seven days from the date of the tender by way of complaint, including the reasons stipulated in Article 226 of the Code of Obligations, and that it shall be accepted that the interested parties have become aware of the irregularities in the transactions that took place until the tender was made at the latest on the day of the tender.
As can be seen, the aforementioned provisions define the terminations that are limited to the enforcement law, subject to simple judgement and can be requested through a complaint to the enforcement court. It should be accepted that an investigation and evaluation within this scope cannot indicate the existence or non-existence of the reason constituting the cause of the property right in the face of the principle of causality in the formation of title deed records; in other words, the fact that the requests for the termination of the tender are rejected will not eliminate the reason for corrupt registration.
On the other hand, the principles and facts mentioned above, especially … …. The contents of the case file of the Assize Court case file 2004/373 Es.s. and … …. When the material facts determined and finalised in the 2003/173 Es.s. reinstatement of the proceedings at the Civil Court of Peace are evaluated together, it is understood that the defendants, both in the dissolution of the partnership and in the sale files, although they knew the addresses of the plaintiffs, fraudulently and falsely reported their own commercial business addresses and reached the result by having the notifications made to their own business addresses.
In that case, it is clear that it cannot be said that an appropriate causal link is provided between the decisions and transactions in the dissolution of the partnership and sale files and the registration process, since the party formation, which is one of the conditions for the visibility of the proceedings, was not duly ensured by fraudulent means in the dissolution of the partnership case based on the sale of the immovables, and the same fraudulent situation was continued in the sale file, and it is undoubted that the said decisions and transactions will not produce a valid legal result and the registrations created on the basis of them will be corrupt.
In addition to this, the fact that the plaintiffs received the amounts falling to their shares after the sale of the immovables without any reservation has no effect on the result.
As such, it is inappropriate to reject both lawsuits with an erroneous evaluation, while it should be decided to accept both lawsuits.
With the acceptance of the appeals of the plaintiffs of the main and combined case, it was unanimously decided on 10/11/2020 that the judgement 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 prepaid fee shall be returned to the appellant.
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