14. Legal Department 2021/271 E. , 2021/2550 K.
“Text Of Jurisprudence”
COURT OF First Instance: Court of First Instance
At the end of the hearing held by the deputy plaintiff in accordance with the petitions filed on 08.08.2017 in the merged case on 19.08.2014 in the original case against the defendants and the decision to cancel and register the title due to the preliminary decision in the original case, cancel the title based on the sales promise agreement in the merged case and cancel the title based on the registration request at the end of the hearing; active denial of the absence of antagonism of the original trial, combined from the direction of the case than a denial of the defendant … the timeout, a rejection of the principles given in terms of the other defendants for the plaintiff’s attorney requested by examination yargitayca provision 30/11/2020 blog, but apparently once it has been decided upon the adoption of the appeal petition, and within it resolved by examining the file all the paperwork:
K A R A R
The main case relates to the request for cancellation and registration of the title deed arising from the right of pre-emption, cancellation and registration of the title deed arising from the contract of sale of the case, which was merged after the breakdown.
In the original case, the deputy plaintiff requested the cancellation and registration of the title deed arising from the pre-purchase right, stating that the plaintiff is a stakeholder in 349 island 3 parcels, that 1/3 of the shares belonging to the defendant were sold to the defendant on 28.10.2013.
In the combined case, the deputy defendants filed an appeal against the statute of limitations and separately defended the rejection of the case.
By the court, unopened considered to be the first decision of the case, the plaintiff of counsel on appeal dated 16.01.2017 2015/7295 principles and Decision No. 2015/277 our apartment with the sentence: “…by the plaintiff HMK 119/B deficiencies are fulfilled understood that because the court, a party formation by overcoming deficiencies regarding the establishment of the other party after it is completed by entering into the merits of the case in writing as to when a decision should be made towards the establishment of the provision reported, ” on the grounds that it was quashed.
In the aftermath of the destruction are combined in the case that the plaintiff plaintiff’s Attorney …’s real estate parcel No. 349 dated a stake in 04/05/2006 Island 2 a sales contract, with the promise of a contract with the promise of the stock 28/12/2006 dated sales … bought …the defendant’s status the shares of knowing tricks with a hand, then the registration on their behalf based on the sales contract and the deed by stating that provides cancel the registration request were found.
By the court, according to the warrant reversal, the trial is conducted in the second sentence of the trial, the denial decision given on appeal by the plaintiff by the counsel of the provision, with the announcement of our apartment; ”as for a concrete case, the court by the plaintiff and a preliminary agreement to sell 04825 date 04.05.2006 journal Journal Number Number Date 28.12.2006 17171 on the basis of the defendants …, …, … with the cancellation of the deed of the immovable Island 2 against No. 349 parcel on the merged file into being undecided about name registration unprecedented…” – shaped justification is corrupted.
The court decided to dismiss the original case from the absence of active hostility in accordance with the decision to overturn it, to reject the combined case from the point of view of the defendant … due to the statute of limitations, from the point of view of other defendants.
The decision was appealed by the deputy plaintiff.
1) According to the trial, the evidence collected and the entire contents of the file, all the appeals of the plaintiff’s attorney for the case in the main file and other appeals that fall outside the scope of the following paragraph in the case in the merged file were not seen on the spot, rejection was required.
2)The source of the Turkish Code of Obligations is 29. contracts for the promise of sale of immovable property, which are taken from Article 237 of the Turkish Code of Obligations. article 706 of the Turkish Civil Code. and Article 89 of the Notarial Code. in accordance with the provisions of the article, it is a type of contract that must be personally drawn up in front of a notary, in other words, its validity is subject to the condition of an official form, which imposes debts on both parties and provides personal rights. 716 of the Turkish Civil Code, when the performance of the promised creditor from the seller, who is charged with the debt of transfer of property by the contract of promise of sale of immovable property, is not fulfilled. in accordance with the article, the applicant may request the fulfillment of the provision of the debt in the case of cancellation and registration of the title deed.
146 of the Code of Obligations, since a special statute of limitations is not provided for cases arising from the contract of sale of immovable property. in accordance with the provision of the article, a ten-year statute of limitations applies, and this period begins to function with the birth of the possibility of performance of the contract. However, if the real estate promised for sale has been delivered to the person who has actually accepted the promise of sale by contract or to the promised creditor, that is, in cases filed after the expiration of the ten-year statute of limitations, the defense of the statute of limitations is 2 of the Turkish Civil Code. it does not rest because it is incompatible with the “Rule of acting honestly” contained in its article.
As for the concrete case; the party to the contract dated 04.05.2006 is the plaintiff and the defendant … and the contract has been duly arranged. The plaintiff requested the cancellation and registration of the title deed based on the sales promise agreement, the defendant … put forward the statute of limitations def, the court decided to dismiss the case on the grounds that the statute of limitations had expired.
An important issue is what the start date of the statute of limitations will be in resolving the dispute. in accordance with the real estate sales promise agreement dated 04.05.2006, it is also accepted by the court that the ownership of the real estate subject to the lawsuit has been transferred to the plaintiff, and the plaintiff has continued its ownership without dispute until the date of the lawsuit. As long as the possession continues, there is no mention that the statute of limitations has expired. As a result, it is not right to decide to reject the case with a bet because the statute of limitations has expired.
In that case, while a decision should be made by examining the merits of the work by the court, it was not considered correct to make a decision in writing with a erroneous assessment, and the decision should be overturned for these reasons.
CONCLUSION: The rejection of all appeals of the plaintiff’s attorney for the case in the main case for the reasons described in paragraph 1) above, the acceptance of appeals for the reasons described in paragraph 2), the refund of the fee received in advance to the depositor, the correction of the decision within 15 days from the notification of the decision, was decided unanimously on 07.04.2021, with a clear way to correct the decision, for the acceptance of appeals for the reasons described in paragraph 2).