Judicial Jurisdiction In Requests For Allocation Of Type In Land Registry
1st Civil Chamber 2020/1024 E. , 2021/2377 K.
“Case Law Text”
COURT : … DISTRICT COURT OF JUSTICE 6TH CIVIL CHAMBER
CASE TYPE : Land Registry
In the case of genus rectification case between the parties, upon the appeal of the decision given by the court regarding the acceptance of the case by the defendant, the decision given by the 6th Civil Chamber of the … District Court of Appeal on the abolition of the decision of the Court of First Instance and the dismissal of the case was appealed by the plaintiff’s attorney in due time; The report prepared by the Examining Judge … was read, his explanations were listened to, the file was examined, and the necessity was discussed and considered;
-DECISION-
The lawsuit is related to the request for change of type (qualification) in the title deed.
The plaintiff stated that while the immovable property numbered 668 parcel was registered as a “wooden house” in the title deed, in 2011, renovation works were carried out in the region within the scope of Article 3402/22-a, the immovable property registered in his name was changed to 340 block 38 parcel and its nature was changed as “land”, the immovable property was idle,
There are unused and partially demolished old stone house and annexes, the type correction was made without his knowledge and consent, he applied to the Finike cadastral unit with a petition dated 22/08/2013 and asked for the correction of the mistake, upon the rejection of his request, a lawsuit was filed for the cancellation of the rejection decision dated 09/10/2013 within the scope of Antalya 1. Administrative Court within the scope of the file numbered 2013/1410, but the case was rejected on the grounds of jurisdiction on the grounds that the dispute should be resolved in the judicial jurisdiction, and as a result of the appellate review, the 10th Chamber of the Council of State decided that the case should be resolved in the judicial jurisdiction.
Chamber of the Council of State with the decision of 2014/1082 Esas 2015/5759 Decision dated 10/12/2015 and finalised on 12/02/2016, and requested the cancellation of the administrative action to change the nature of the “wooden house” in the title deed of the immovable property numbered 340 block 38 parcel and to register it as “land” and to register the nature of the immovable as “wooden house” to the title deed.
The defendant declared that the property was corrected as land due to the fact that it was demolished and unusable on the ground in the application works of Article 22-A of 3402 SK. and that the house on the ground was defined as “stone house” as the plaintiff insisted, and requested the dismissal of the case on the basis of merits and animosity.
The court decided to accept the case as a result of the trial held by the court upon the decision of the Court of Dispute, which was applied for the determination of the authority with an interim decision, that the judicial jurisdiction is competent in the resolution of the dispute, and upon the appeal of the judgement by the defendant, the 6th Civil Chamber of the Antalya Regional Court of Justice decided to dismiss the case by abolishing the decision of the Court of First Instance on the grounds that the correction of the type and quality will be made by the land registry office and that it is an administrative duty.
As it is known; pursuant to Article 158 of the Constitution, the Court of Dispute (UYM) is authorised to resolve the conflicts of jurisdiction and judgement between the judicial and administrative judicial authorities definitively, the same issue is explained in Article 1 of the Law No. 2247, Article 28/2 states that “the relevant judicial authorities and all authorities, institutions and persons are obliged to comply with the court decisions and to implement them without delay” and Article 29/1 states that “the decisions of the dispute court are final”.
In the concrete case; Although the requests for gender correction remain within the scope of administrative duty; Since it was decided to reject the application of the Demre Civil Court of First Instance by stating that the judicial jurisdiction is responsible for the resolution of the dispute with the final decision of the Court of Dispute dated 24.03.2018 and numbered 2018/74 Esas, 2018/140 Decision, it is erroneous to reach a conclusion by ignoring the above-mentioned legal provisions and the decision of the Court of Dispute, while the decision of the first instance court on the merits of the matter should be examined.
As such, it is not correct to make a written decision with an erroneous evaluation while the merits of the matter should be examined.
It was unanimously decided on 19/04/2021 to accept the appellate objections of the plaintiff’s attorney, which are appropriate in terms of the aforementioned aspect, and to annul the decision of the 6th Civil Chamber of the Antalya Regional Court of Justice in accordance with Article 371/1-a of the Code of Civil Procedure No. 6100, to send the file to the 6th Civil Chamber of the Antalya Regional Court of Justice, which made the decision in accordance with Article 373/2 of the CCP, and to return the advance fee to the appellant.
You can access our other article examples and petition examples by clicking here.