Presumption Of Ownership
T.C.
Supreme Court
11th Civil Chamber
No: 2013/16348
Decision No: 2014/218
Date of K.: 7.1.2014
In the case between the parties, a request for correction of the decision was made by the plaintiff’s attorney against the decision of the Chamber dated 24.06.2013 and numbered 2012/15941-2013/13075, which approved the decision dated 31.05.2012 and numbered 2011/61-2012/109 given by the Ankara 2nd Civil Court of Intellectual and Industrial Rights, and it was understood that the petition for correction of the decision was submitted within the time limit, and after the report prepared for the file was heard and the petitions, pleadings, hearing minutes and all documents in the file were read and examined, the necessity was discussed and considered:
The plaintiff’s attorney stated that his client was engaged in the filling of medical gas into the cylinders allocated by concluding cylinder rental and medical gas sales contracts with its customers, that there were cylinders owned by his client based on the lease agreement in dealers and customers throughout the country, and that the defendant, who was engaged in scrapping, was found to have twenty-four cylinders bearing the logo and title of his client, claiming that there is no contract or commercial relationship between his client and the defendant, and that the defendant, who is engaged in scrapping, has the cylinders in his possession for the purpose of selling them, and demanded and sued that the twenty-four cylinders, which are unjustly in the possession of the defendant, be returned to his client in kind, otherwise, the cost of 24 cylinders at 432 TL each, which is 12. 234,24 TL, which is the cost of 24 cylinders at 432 TL each, to be collected from the defendant and given to his client.
The defendant’s attorney requested the dismissal of the lawsuit.
The court, according to the evidence collected, the possession of the cylinders subject to the lawsuit left the plaintiff with the consent of the plaintiff, the cylinders, which are in the nature of movable property, which left the hands of the owner with the consent of the owner, were transferred to the defendant by the companies that bought them with gas for the first time, and from there to the defendant, and the possessor of a movable will be considered its owner, Upon the appeal of the plaintiff’s attorney, the Chamber upheld the decision dismissing the lawsuit on the grounds that the defendant was not malicious and that the person who acquires the right of ownership in good faith from the possessor of a movable as a trustee, even if the possessor does not have the authority to make such dispositions, the acquisition will be protected.
The plaintiff’s attorney requested a correction of the decision.
The lawsuit is related to the claim for the return of the cylinders claimed to belong to the plaintiff, and if not, for the collection of the price.
It is not a matter of dispute that the cylinders used in medical gas filling belong to the plaintiff, that the cylinders of the aforementioned type were left with the gas to the non-suiting companies as a loan, that gas was sold as it was emptied, that the ownership of the cylinders was not transferred, only the possession was transferred. In addition, the cylinders seized at the defendant’s workplace were found to be original, had the plaintiff’s logo on them, and that the defendant, who is engaged in scrap dealership, purchased these cylinders from the non-suiting company against invoice. The defendant defended that he purchased the cylinders, which are movable property, from the owner in good faith.
Pursuant to Article 985 of the TCC, as a rule, the possessor of a movable thing is deemed to be its owner. Again, as a rule, those who acquire rights from the possessor in good faith by relying on this presumption of ownership are protected. The good faith in the aforementioned regulation is subjective. In other words, in other words, the acquirer must not know or be in a position to know that the possessor who has acquired rights is not authorized to do so. Good faith is essential and presumed to exist. However, a person who fails to exercise due diligence in accordance with the requirements of the situation cannot claim good faith. In addition, in cases where the investigations to be made by the winner may reveal the unauthorization of the disposer, the fact that these investigations have not been made eliminates the claim of good faith (See Oğuzman-Seliçi -Özdemir : Property Law, p.96-97).
In the face of this situation, it is accepted that the tubes belonging to the plaintiff are of medical nature, that there are signs on them that clearly indicate that they belong to the plaintiff, that their placing on the market and circulation are subject to special legislation and standards, that the defendant operating in the field of scrapping did not show the necessary care in terms of the acquisition of ownership, and that the decision should be reversed in favor of the plaintiff in order to resolve the dispute by accepting that it was not in good faith in this respect, but since the appellate objections were rejected and approved, the decision should be reversed in favor of the plaintiff, and the request for correction of the decision of the plaintiff’s attorney is accepted. 06.06.2013 dated 2012/15941 Esas-2013/13075 Karar numbered approval decision should be reversed and the judgment should be reversed for the reasons explained above.
CONCLUSION: For the reasons explained above, upon the acceptance of the request for correction of the decision of the plaintiff’s attorney, the decision of our Chamber dated 24.06.2013 and numbered 2012/15951 Esas-2013/13075 Decision should be reversed and the decision should be reversed in favor of the plaintiff for the reasons explained above, and the appeal advance, appeal writ and decision correction fees should be returned to the appellant and the decision correction requestor upon request, it was unanimously decided on 07.01.2014.