8. Legal Department 2018/15610 E. , 2021/2262 K.
“Text Of Jurisprudence”
COURT OF First Instance: Court of First Instance
CASE TYPE : Men of Intervention, Stay
At the end of the trial between the parties and held in the case described above, the Court decided to accept the case, and after the verdict was appealed by the defendants, the Apartment file was examined, and the dec was considered necessary:
decision
The acting plaintiff is in the original case; client, the name of the 18th District district … … 227 parcel, parcel No. 16 that they are owners of immovable 227 name of the defendant, the defendant and the four-storey home, on the balcony of the house when his own property belonging to the client that the window portion is done for client’s needs within the boundaries of the immovable real unfair elatild also, if during the construction phase without permission from the client to the client’s garden wall by the defendants destroyed, the subject of the lawsuit has requested and sued the men of the defendants’ unfair interference with the immovable property No. 227 ada 18 parcel and the kal of the defendant’s structures on the immovable property belonging to his client, dated 15.03.2018, 16.at the hearing, he stated: although the defendants, along with the intervention men, also requested the destruction of flood structures, did not want the destruction of the defendant’s real estate in accordance with the neighborhood law, however, if it is not possible to close the glass and balcony made contrary to the zoning plan and license, the intervention’s demands for semen and kal continue.
In the merged file, the deputy plaintiff requested and sued the men of the intervention by closing the glass window and balcony contrary to the defendants’ zoning license.
One of the defendants … defended the rejection of the lawsuit by informing that the balcony and window part of the real estate subject to litigation is located within the boundaries of his real estate in the land registry, and the destruction of the garden wall was commissioned by the plaintiff himself.
One of the defendants … at the hearing dated 17.07.2012; argued that the plaintiff had seen the way the building was built and had not filed an appeal, the case was dismissed.
By the court; dated 05.02.2013 2012/110 based on a Decision by the decision of 2013/75; upon the adoption of the plaintiff’s case, belonging to the defendant, the District … … District Name parcels registered in the immovable 16 227, belongs to the plaintiff and the … … district … District, name of his real estate expert witness No. 227 dated to the science of Halil Ibrahim parcel Nurdogan 18 16.10.2012 shown in red in the schematic report and painted with a letter 2,05 m2 floor of a rape prevention, the ledge will collapse 2,05 m2 of the appeal by the defendants as a result of the decision of the Supreme Court 1. The decision to overturn it was made by the decision of the Legal Department dated 28.01.2014 and based on 2013/18095, Decision No. 2014/1317.
In the decision to overturn, “The lawsuit was filed with the intention of preventing the elimination of large-scale real estate and demolition requests.
By the court, on the grounds that flood the building has been found kesfen decided upon the adoption of the case; if the request is the appeal of the defendants in the case, the decision rejected the appeal of staying below the limit of the value of a promise by additional; additional aforementioned decision was appealed by the defendants.
It should be noted immediately that, given that the case at hand is caused by the same real estate, it is clear that it is not subject to the limit of certainty in terms of the value of the case. In this case, there are no hits in the october decision on the refusal of the appeal request.
On the other hand, in terms of the merits of the work; It cannot be said that the report prepared by the science expert by applying the sheet to the ground is sufficient for the judgment, nor is it correct not to focus on the defendants’ defences of temliken registration.
In these circumstances, the first cap of the record or records must be brought by all the evidence collected, the file is ready to explore in the application to be made after the cadastral survey or Cadastral engineer, science officer with the ability of adjectives and diagnosed during the triangulation of a point to an expert witness, or both in the plot and in the field by utilizing these existing fixed point method in accordance with the cadastral measurement should be done with precision tools, expert enough to allow execution of the application of the plaintiff’s real property and particularly reflecting on whether there is an infringement, a sketch and a report should be obtained that clearly shows the amount, if any; 725 of the Turkish Civil Code No. 4721 in the framework of the defendants’ defense of temliken registration. it should be investigated whether the conditions in the article have been realized.
The defendants’ appeals are in place for the reasons described.
1- Elimination of the additional decision of the local court dated October 30, 2013, which is contrary to the procedure and law (regarding the rejection of the appeal request),
2- Provisional Article 3 of the Civil Procedure Code No. 6100 of the decision of the local court (on the acceptance of the case) dated 05.02.2013. article 428 of the Code of Civil Procedure No. 1086. it was unanimously decided on 28.01.2014 that it would be overturned in accordance with its article and that the advance payment received would be returned to the appellant.it has been said that “.
In the proceedings held after the court’s decision to overturn has been complied with;
1-With the acceptance of the filed case from the point of view of the actual case; the province … county … Mah belonging to the defendants. 227. 16 the immovable property registered in the parcel belongs to the plaintiff … province … county … Mah. 227 in the report and sketch of the transfer dated 13.04.2016 organized by science experts to the real estate of ada 18 parcel No. 18 with a red color and the letter A, the men of the intervention in the area of 2.09 m2 indicated by the letter,
2-With the acceptance of the case filed in terms of the merged file; the province … county … Mah belonging to the defendants. 227. 16 the structure located on the parcel belongs to the plaintiff … province … county … Mah. 227. the decision on the men of the defendants’ intervention by closing the balconies and windows located in the direction facing the island 18 parcel real estate has been appealed by the defendants in due course.
The case concerns the prevention of large-scale relocation and stay requests.
1. Since the contents of the file, the case documents and the trial minutes have been discussed and the available evidence has been decided by the court, if there is no inaccuracy, it has been decided to reject other appeals from the defendants that are not in place outside the scope of the following paragraph.
2. The acceptance of a violation of the neighborhood law depends on the condition of damage. If it is not proved that the construction made by a person in his own property area has caused damage to the neighboring immovable property, it is unthinkable that this state will be characterized as strife and will be eliminated. Violation of zoning and licensing, on the other hand, concerns the administration and administrative jurisdiction. The fact that windows and balconies have been opened in the direction of the neighboring parcel does not constitute a violation of the neighborly law in itself. Making a construction contrary to the zoning plan is a behavior that basically makes the administration and administrative sanction necessary and cannot be interpreted abstractly in the form of violating neighborhood law.
As of this respect; according to the scope of the entire file at the end of the trial, it is not correct to make a written decision since the existence of windows and balconies contrary to the zoning and license cannot be proved that there is tangible damage to the plaintiff.
CONCLUSION: The decision of the defendants for the reasons specified in paragraph (1) above … to reject other appeals for written reasons and to accept that the appeals are in place for the reasons indicated in paragraph (2) of HUMK’s 428. according to article 440/III-1, 2, 3 and 4 of the HUMK. in accordance with the provisions of the article, it was unanimously decided on 15.03.2021 to return the advance fee to the appellant upon request, since the way to correct the decision against the ad was closed.