17 Apr Acquisitive Prescription
T.C SUPREME COURT 20.Legal Department Basis: 2019 / 4916 Decision: 2020 / 823 Decision Date: 18.02.2020
SUPREME COURT DECISION
Court :Cadastral Court
At the end of the trial of the case between the parties, the decision established by the Supreme Court was examined at a hearing by the United plaintiffs … and … their attorney, Av. … requested by, appointed 02/04/2019 on the notification made, appellant plaintiffs … and … Attorney Av….they’re here, on the other hand, the plaintiff is acting Treasury Av. … came, no one else came, the open hearing began. After the decision was made to accept the appeals, which were understood to be in due course, the oral statements of the arrivals were heard, and the hearing was reportedly over. It’s up to the decision. Then all the documents in the file were examined and considered necessary:
DECISION
During the cadastre … 223 city block in his town 4, 15, 17, 19, 35, 40 and 225 city block with 44 parcels of real estate 6 parcels of 227 city block with 9 parcels of real estate field nature and due to the statute of limitations, the defendant…; 227 city block 10 parcels with ½ share … and … have been identified in his name Plaintiff Treasury, 223 city block 4, 17, 19, 35, 40 and 44; 225 city block 6 and 227 city block 9 and 10 parcels of real estate on the claim that the terms of acquisition did not occur with the cancellation of the determination and the decision to register and register the deed on behalf of the Treasury has filed a lawsuit.
In the combined file, the plaintiff … 223 city block 15, 17 and 19 parcels and 227 city block 9 parcels requested registration in his name.
18 of the Law No. 3402 on real estate subject to the lawsuit with the rejection of the appeal by the court. in accordance with the article, it was decided to register and register the deed on behalf of the Treasury, the provision was appealed by the plaintiff…, our department 2013/10568-2014/6766 E.K. “the research and judgment carried out by the court is not sufficient.
1) Cadastral tesbitine appeal cases are opened by showing the adversary of the owners of determination. 227 city block 10 parcels of contested real estate … and … have been identified on behalf of, only … have been sued by enmity, other landlord detection … have been included in the case and established a provision for 227 city block 10 parcels without providing a party,
2) from the scope of the file, it is understood that 223 city block 35 and 40 parcels of real estate, whose original minutes are not in the file, are also the defendant in the court’s 2011/8 main file. It is not thought that all cases filed for the same parcel should be concluded by seeing them together so that contradictory decisions are not made and there is no hesitation in execution,
3) in the combined file … 223 city block 15, 17, 19 parcels and 227 city block 9 parcels…,…, … and … ’s hostility directed to the lawsuit, the file at hand …and the persons directed by the hostility is not shown in the decision Title … ‘ s case in terms of any decision has not been made possible,
4) in Paragraph 1 of the decision created by the court, it was called the rejection of the appeal, as it is not clearly stated which plaintiff’s appeal was rejected, in this case filed as an objection to the determination of the cadastre, the rejection of the appeal should be established, the rejection of the appeal should be called, in addition, despite the rejection of the appeal, the cancellation of the cadastral definitions of real estate without specifying the type and quality 18 of law 3402. according to the article, the decision to register on behalf of the Treasury is against the procedure and law and is the cause of violation.”it was decided to overturn the provision by addressing the need.
Plaintiff …, 223 city block 35 and 40 parcels of real estate and 225 city block 6 parcels of real estate he filed a lawsuit based on the statute of limitations, at the end of the trial by the court to reject the appeal, 225 city block 6 parcels, 223 city block 35 parcels, 223 city block 40 parcels in terms of real estate, 3402 Cadastral law 14/1. article 18 of the Law No. 3402 on real estate related to the cancellation of cadastral definitions with the understanding that there are no necessary conditions in accordance with the article. in accordance with Article 16 of the Supreme Court on appeal of the provision, it was decided to register and register the deed on behalf of the Treasury. Law Department 2014/20280-2015/8907 E.K. “the real estate subject to the court case has not been bellied for the last 20 years, Law No. 3402 18. according to Article 14. although the provision has been established in writing on the grounds that immovable property that is outside the provisions of the article and subject to registration will be determined on behalf of the Treasury; the evaluation is not in accordance with the scope of the file.
223 city block 35 and 40 parcels of real estate subject to the case 225 city block 6 parcel of real estate of the Treasury … due to the lawsuit filed by the cadastral Court 2011/10 the main case file is also the defendant, the court …’s case was rejected, the Treasury’s case was decided to accept, the plaintiff …’s appeal appeal on the Supreme Court 20. As a result of the examination conducted by the legal department, the provision was broken on the grounds that” 223 city block 35 and 40 parcels of real estate, whose original minutes are not in the file, are also the defendant in the court’s 2011/8 main file, and all cases filed for the same parcel should be considered together and concluded”. Although 223 Islands 35 parcel minutes are not among the files in the mentioned declaration, the original report of this move is in the case file 2011/8 basis, 20. The original minutes, which are not among the files subject to the legal department’s violation notice, belong to 223 city block 40 and 225 city block 6 parcels. As such, 223 city block 35, 40 and 225 city block 6 parcels of real estate, which are the subject of litigation and appeal in the 2011/8 main file, the old 2011/10 Main, The New 2014/42 main file is also the defendant, and all cases related to the same relocation must be considered by combining. The court ignored this issue and decided in writing that it was not accurate, and the appeals are in place for the reasons described,” it was decided to overturn the provision by referring to the need.
223 Island 40 parcel participated in the case with the request for registration on behalf of the real estate, as a result of the trial, the plaintiff in the main file accepted the case filed by the Treasury Turkoglu district, … Karapinar District 223 city block 4 parcel, 223 city block 35 parcel, 223 city block 44 parcel, 223 city block 19 parcel, 223 city block 17 parcel, 223 city block 15 parcel, 223 city block 40 parcel, 225 city block 6 parcel and 227 city block parcel, 227 city block 10 parcel No. Cadastral determination of real estate on behalf of the Treasury with the cancellation of real estate determination and registration of forest quality, merged 2011/12 main file, plaintiffs opened the case, … neighborhood 223 city block 15 parcel, 223 city block 17 parcel, 223 city block 19 parcel, 227 Island 9 parcel No. real estate in terms of rejection, merged 2015/71 main file that’s the case; waiver of parcel No. 289 quarter due to the terms of Kahramanmaraş province immovable city block … 12 denial of plaintiffs involved with and … …’s case, the name …223 parcel quarter, 35, 40 name parcel 223, 225 parcel of immovable property in terms of denial No. 6 name has been decided, the terms are combined by the plaintiffs name, 223, 15, 17, 19 and No. 9 227 parcel immovable properties name, combined by the plaintiff island 223 35, 40, and No. 225 parcel 6 parcel name immovable properties; the internal defendant … heir … appealed by 227 Islands 10 parcels for relocation, 30/11/2018 decision and memorandum despite the appeal costs were not paid due to the United plaintiffs … and …’s appeal request was refused by the United plaintiffs … and … Attorney 30/11/2018 was appealed by the additional decision period.
The case relates to an appeal to the cadastral determination.
Forest Cadastre and 2/b article applications made in accordance with law No. 6831 in the region were completed in 1991. There are Correction studies carried out in accordance with the law No. 4999, which was finalized on 03/06/2011.
It is understood in advance that resides in the file dairemizce an inspection cost and sufficient, but the plaintiffs in violation of the law combined procedures and … and …’s appeal is the decision dated 30/11/2018 deemed to have waived that they are given by the court decided the abolition of additional files and attachments examined and duly noted;
Although the court decided to register contested real estate on behalf of the Treasury with forest quality with the rejection of the case of the plaintiff and the main intervention, the condition of the real estate in the oldest dated hometown map and air photos and the air photos 20 years before the date of detection were not examined in accordance with the condition and location according to the forest limit, the sale Bill and other documents on which the plaintiffs are based were not duly applied, although the claimant Treasury did not have a contentious case for relocation of 223 city block 15 parcels, it was decided to register the real estate on behalf of the Treasury with a forest qualification, without taking into account Article 36/A of law 3402, the attorney fee was appreciated in favor of the plaintiff Treasury. A provision based on incomplete research and examination cannot be established.
In that case, the court, the old dated hometown map, air photos and air photos of 1990-1995 and the management plan, if any, should be brought from the relevant places, all forest restrictions understood to have been made in the area where the contentious property is located, and the results of the work on correcting Fenni errors in accordance with law 4999 show the location of the real estate along with the border points of the forest restriction certified forest restriction map sample must be provided separately, currently outside of the previous witnesses, who do not serve in the Ministry of Agriculture and forestry experts in this area and subordinate units will be selected from among three forest engineer, forest engineer, an agronomist and elements of science through a re-review and in the expedition to be done, the bureau and the forest boundary points on the map that is written record of the position, Place, Person names with Angle and distance, according to the forest cadastral maps and aerial photographs of the town using a map and records used in preparing different angles and distances of the forest and the border point at least 6-7 pieces roperlenmel, forest cadastre-related border points are translated to the same scale, the location of contested real estate according to the forest cadastre map on the general cadastre chart and at the same or nearby forest boundary lines, if there are parcels subject to litigation, all of them should be shown on the combined map, the narratives in the minutes should be evaluated, , mahal won’t hesitation, annotated, forest immovable property cadastre according to the report by taking krokil locations should be determined in a way that does not hesitate in imported documents dated with old immovable immovable as described in this document contentious environmental land should be determined by applying ago; 3116, 4785, it should be determined across the status and No. 5658; land and
45 of the Law No. 3402, which allows you to gain land from the forest with a bell. relevant paragraphs of the article, 01.06.1988 day of the Constitutional Court and 31/13 E.K.; 14.03.1989 day and 35/13 E.K. and 13.06.1989 day and 7/25 E.K. 14 of the Law No. 5304, which was repealed by the resolutions numbered and the remaining paragraphs entered into force on 03.03.2005. because it has been repealed by the article, it should be considered that only forest soil is considered a forest, even if the forest vegetation on a place that was a forest before it cannot be gained from the forest by these means.; soil structure, vegetation and environment should be examined; in the discovery, under the supervision of a judge, color photos of the property from four directions should be taken, approved and added to the file; other documents mentioned above should be applied instead by scientific and expert forest experts; original color (color copier)land cadastral maps and aerial photographs scale to the scale of the map, cadastral maps and land again on the scale of the map at the scale of aerial photographs (Net-using CAD or similar program) is rotated after the applique on top of each other in a group of neighboring and adjacent parcels by parcel immovable contentious, along with the environmental needs of the country to be shown on a map and aerial photographs, aerial photographs through three-dimensional inspection is performed with The View-Master, an adequate report should be obtained based on practice and research, with scientific data with a sketch that bears the approval of experts, and not only an office review in which the type, age, distribution, and closure rate of vegetation on the real estate are explained.
As a result of the research to be done using the described method, if it is determined that the real estate remains outside the finalized forest boundaries, that it is not from the places that are considered forests as a pre-and elephant situation, this time, the conditions of winning by means of possession are investigated, in the discovery to be made, the agricultural engineer as an expert expert, the agricultural engineer should be examined, whether the real estate is a cultural land that can be acquired by possession, and a report should be taken on this road; ; if you have a possessory immovable property should rest at the beginning of the witnesses; tenure began when, how and in what way, asked him to continue for many years, the exact date and fact-based, Open received in response; they are fixed until the date of possession for the benefit of the plaintiff to win the quantification of the conditions should be determined; the plaintiffs ‘ securities, which is based on external sales involved in the original scene, by expert hands with the expedition should be provided by experts in Applied Science denetmeleme transferred to the opportunity to sketch, 3402 Article 14 of law. according to the article, on behalf of the plaintiffs and the original belgesiz involved in same indifferent and whether or not registered or identified in the study area and the relevant immovable property other than land registry Directorate Directorate prompted by any decision of a court of law, whether of the same law dated 3/7/2005 5403) 14/2 changed with soil conservation and land use law. considering the provision of the article, the amount of land acquired as watery and dehydrated should be determined and determined whether the limitation imposed by the law has been exceeded, it should be taken into account that the plaintiff does not have a case against the relocation of the Treasury 223 Island 15 parcels, all the evidence to be collected should be evaluated together and a provision should be established according to the result to be reached.
According to the adoption, 16 of the Law No. 6099, which entered into force on 19.01.2011. amendment added to the Law No. 3402 “detects and records the process for cancellation of cadastral formed by the beneficiary against the state or other public institutions in the cadastral record filed by general courts courts against the defendant, including attorney fees, court costs and expenses will not be subjected to.”shaped 36 / A and 17. “the provision of Article 36/A of this law also applies to judicial expenses, including the power of attorney fee, in judicial decisions that have not yet been executed.”temporary 11. according to the provisions of the article, the discretion of the attorney fee in favor of the claimant Treasury is incorrect.
It is against the procedure and the law to establish a provision in written form based on incomplete examination and insufficient expert report, without regard to the issues described.
Conclusion: for the reasons described above; the merged plaintiffs … 223 Islands 15, 17, 19 and 227 Islands 9 parcels of real estate, the merged plaintiff …223 Islands 35, 40 parcels
parcel No. 6 name and immovable properties to 225; internal heir to the defendant … …’s name 10 No. 227 parcel immovable immovable properties with the acceptance of this provision for appeal appeals against corruption, the hearing of appeals to the Supreme Court hearing is due to be made in the law in effect on the date of 2540,00 appreciated at the minimum wage rate.-It was decided unanimously on 18/02/2020 that the TL power of attorney fee should be taken from the defendant’s Treasury and given to the person who represents him by proxy … and …and that the appeal fee should be returned upon request.
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