General Assembly of Law 2017/1210 E. , 2020/548 K.
“Text of Jurisprudence”
COURT : Magistrate’s Court
1. At the end of the trial between the parties for the case “deciphering that the immovable owner and the plaintiff are the same person”, Istanbul Anadolu 16. 1. The Court of Cassation on the appeal of the plaintiff’s deputy on the decision of non-duty issued by the Magistrate’s Court. The examination by the Legal Department was eventually overturned, and the Court resisted the decision to demolish the Private Apartment.
2. The decision to resist was appealed by the deputy plaintiff.
3. After reviewing the documents in the file by the General Assembly of the Law, they were discussed as necessary:
I. THE JUDICIAL PROCESS
The Plaintiff Prompt:
4. The deputy plaintiff filed a petition for the lawsuit; his client’s name is Kadikoy 2. 2005/832 E of the Magistrate’s Court. parcel No. 631 numbered in the file by removing the immovable Island 2 kayyimlik about the decision of the administration requested that it be given to him as the heir, but with the right mirasbirakanl …’s…and … that was accidentally written as the deed of names in the record by the court for the correction of this mistake to your client was given time to sue, Kadikoy 1. Article No. 157 date 29.06.2006 Regional Directorate of land registry and immovable 36/192 stock received from the son’e 14/192 son Mehmet Hamdi stock reported by Malik in the record the names of the deed “…” and “…” in the form of though it seems, in reality …’s mirasbirakani plaintiff’s “the son Mehmet Hamdi” is, hold in … …’s grandfather, a shareholder …’s that was found and adopted by the plaintiff as the sole beneficiary of the plaintiff, citing record the deed “…” and “…” are the names of malik written as “ right” and “…” in the form of the correction requested, at the hearing dated 20.02.2014, after collecting the evidence, tapu Maliki … declared that they had determined that the plaintiff was not the murisi, but that … was the murisi of his client, and requested that a decision be made in this direction.
The Defendant’s Answer:
5. The defendant’s deputy asked that the case be dismissed in the response petition, arguing that the 36/192 share of the immovable property belongs to … his son …, the grandfather, who is asked to be corrected as a right in the lawsuit petition, has the right to … Khalil son …, the father’s names are different, these people are not the same person, there is no spelling error in the land registry.
The Decision of the Court of First Instance:
6. Istanbul Anatolia 16. The decision of the Magistrate’s Court dated 26.06.2014 and dated 2012/338 E., 2014/465 K. by his numbered decision; in paragraph 382 / ç-1 of the Civil Procedure Code No. 6100, requests for creating a party to the real estate and making corrections that will not cause a violation of rights are regulated as non-contentious judicial work, while the plaintiff claims that he is the heir of his son … and Mehmet Hamdi’s son …who were stakeholders in the deed before the sale of the real estate by a court decision, the case is not related to the creation of a party and the correction that will not cause a violation of rights, Muris plaintiff’s claimed to be the people that probate of the sentence that is referenced in the identification of the person in the case of the formation of the party with these individuals to complete and can be built and then request that the case should be seen not having a job on the grounds of the court’s uncontested judicial gorevsizlig the verdict and demand in the case of the file sent to the court, was decided to be in charge of the Istanbul Anatolian.
The Decision to Spoil the Private Apartment:
7. The above-mentioned decision of the court was appealed by the deputy plaintiff.
8. Court of Cassation 1. The Legal Department has a certificate dated 09.12.2014 and dated 2014/21349 E., 2014/19278 K. by his numbered decision;
“…The case is related to the registration owner’s request to determine that the plaintiff’s muris is the same person, and the Civil Procedure Code No. 6100 (HMK) was filed in due course; the court decided to dismiss the case by stating that the case should be heard in the court of first instance as a contentious jurisdiction.
As is known, Article 382/1 of the Code of Civil Procedure No. 6100. article: “Uncontested judicial, law courts, by one or more of the following three criteria according to the judgment entered in the job that is applied to the sentence” there are included; these criteria related to the job any conflict between non-state and the judge may argue that it is concerned that the absence of any right are expressed as ex officio are on the move.
In the law, it is stated what are non-contentious judicial affairs, first by determining the general framework, and then by counting as much as possible. However, since this counting is not limited, other works that are not counted in the article of the law but carry the criteria of non-contentious jurisdiction should also be considered as non-contentious judicial work. In other words, 382. a job that carries one or more of the criteria of a non-contentious judiciary, although it is not considered in the article, can also be considered a non-contentious judicial job.
In such cases, there is no dispute between the requesting party and the decisionary Land Registry Office. The Land Registry Office is involved in the case only as a legal opponent. In fact, it concerns not only the parties in the proceedings, but also the only ones. It cannot be said that the dispute disappears if the parties concerned reconcile, nor does the acceptance of the relevant party’s case have consequences. In this sense, the existence of a real decency between the parties is out of the question.
On the other hand, 382. article 2-o/1. in the paragraph ”Making corrections that will not cause the creation of a party to the real estate and violation of rights” is considered a non-contentious judicial job, and as a result of its nature, the work of determining that the owner of the land registry and the plaintiff’s muris are the same person also meets this definition.
As a result, instead of examining the merits of the work and making a decision based on the result, it is not correct to make a provision in writing …”the provision was overturned on the grounds that.
The Decision to Resist:
9. Istanbul Anatolia 16. The decision of the Magistrate’s Court dated 05.05.2015 and dated 2015/146 E., 2015/313 K. by its numbered decision, the decision to resist was made on the grounds of the first provision.
Appeal of the Decision to Resist:
10. The decision to resist was appealed by the deputy plaintiff within the time limit.
II. DISPUTE
11. According to the plaintiff’s claim and the scope of the file, whether the case at hand is related to the creation of a party to the real estate and a correction that will not cause a violation of rights, whether it should be considered in the magistrate’s court as a non-contentious judicial work according to the result to be reached is collected at the point of resistance before the General Assembly of Law.
III. reason
12. For correction of a lawsuit identifiable information in the record that deed in the land records in accordance with records since the aim of the census is to be brought in this direction, record the deed in the prompt itself, the plaintiff carries the same person or prompt detection of Muris Maliki.
13. In the petition of claim, it was also stated that the 631 island 2 parcel real estate owners and the plaintiff’s heirs requested that the names of the owners written in the land registry be corrected in accordance with the population records, and the claimant’s deputy’s statement dated 20.02.2014 was sent to one of the registration owners.
14. However, since the immovable property numbered 631. 2 parcel was sold before the date of the lawsuit on the basis of a court decision and registered on behalf of a person named Siddik Pasha who was out of the case on 24.03.2011, it is clear that the plaintiff has a legal interest in determining that the registration owner and the plaintiff’s muris are the same person, although a correction cannot be made in the land registry anymore.
15. As is known, incomplete or incorrect registration of identification information such as the name, surname, father’s name, gender, dates of birth of the owner of the right of ownership during the cadastral determination or registration of real estate in the title deed constitutes the source of registration correction cases.
16. 1027 of the Turkish Civil Code No. 4721 (TMK). according to the article, unless the relevant persons have written consent, the land registry officer can correct the error in the land registry only by a court decision, except for simple typographical errors (ordinary typographical errors) that can be corrected officially in accordance with the rules of the Land Registry Charter.
17. On the other hand, non-contentious jurisdiction is a type of jurisdiction with different characteristics from contentious jurisdiction and is defined by Article 382 of the Civil Procedure Code No. 6100 (HMK). Article 1. paragraph; “Uncontested judicial, courts of law, by one or more of the following three criteria according to the judgment entered in the job that is applied to the sentence,” after the three basic criteria is given in the “related persons conflict between non-state”, “the absence of any right that may argue that it is concerned” and “the judge ex-officio on the move as” are expressed as.
18. As can be understood from this regulation, in a contentious decisionthere is a dispute between the parties that must be resolved by the court within the framework of the claim and the defense. As a rule, there is no dispute between the interested parties in non-contentious judicial dec. Again, although the subject of the contentious judgment is the subjective rights of the parties, the person who makes a claim in the non-contentious judgment has no subjective rights that he can assert against the relevant party.
19. As a rule, the principle of being brought by the parties in a contentious judgment (HMK m. 25) while it is valid, the principle of spontaneous investigation applies if there is no provision to the contrary in non-contentious judicial affairs.
20. The court in charge of non-contentious judicial affairs is the magistrate’s court (HMK m.383). Again, although the written trial procedure is the main one in contentious jurisdiction, in non-contentious judicial affairs, to the extent that it is appropriate for its nature, a simple trial procedure is applied (HMK m.385/1).
21. The nature of the decisions made in the non-contentious judiciary is also determined by HMK 388. it is expressly regulated in the article and provided that in cases where there is no provision to the contrary in the law, non-contentious judicial decisions will not constitute a material final provision. Therefore, if the decision is considered unfair or erroneous, it is possible to request a rectification according to the evidence put forward and to change the provision.
22. In HMK, it is stated that the general framework of non-contentious judicial affairs has been determined first and then counted as much as possible. However, since this number is not limited, other jobs that are not listed in the article of the law but have non-contentious judicial criteria should also be considered as non-contentious judicial jobs.
23. In registration correction cases that must be filed by decriminalizing the land registry office, there is actually no dispute between the land registry office and the plaintiff. The land registry office, which is responsible and responsible for maintaining the land registry, is involved in the case only as a legal opponent. It is not a party to the proceedings, it is related. It cannot be said that the dispute has ended with the settlement of the plaintiff and the land registry office, nor does it have any consequences if the relevant land registry office accepts the case.
24. For this reason, registration correction requests are of a non-contentious judicial nature and the magistrate’s court is in charge. Since the Court is both a non-contentious judicial business and the State that undertakes to maintain the land registry in order to demonstrate the rights to real estate, to ensure their establishment and transfer has an obligation to create the correct register, it is decided by collecting evidence in accordance with the principle of spontaneous (formal) research.
25. Decisions in this kind of work does not constitute a judgment if the record to be decided by the court examination conduct and a healthy correction or detection-Maliki Muris beyond a doubt that the plaintiff or the same person must be determined. As a result of the examination and research to be carried out, if dec connection and consistency is established between the land registry and population information, the request should be accepted.
26. When correcting identity information, the owner of the immovable property should not change, in other words, the transfer of ownership should not be caused. Because HMK’s 382/o-1. in the article, it is considered as a non-contentious judicial job to make corrections that will not cause the creation of a party and violation of rights only on real estate.
27. In this context, even if the plaintiff creates a dispute by claiming that the registration owner and his own muris are the same person in the case that he referred to the land registry office, claiming that other people outside the case are their own muris, the detection case that is being considered will not be out of the scope of the jurisdiction without a dispute. Such a situation can only be the reason for the refusal of the case in terms of not causing the transfer of ownership.
28. On the other hand, the case that started to be heard in the duty court upon a decision of non-duty given is not a new case, but is a continuation of the case filed in the duty-free court. Therefore, if there is a dispute during the case filed with a request to correct or determine the registration, or if there is a possibility of transferring the property, a decision of dismissal is made, and there is no opportunity to continue the case in the civil court of first instance. Because the title office is not the party to the dispute or property dispute that has arisen, it is not possible to resolve the dispute by continuing it in the court charged with it. The plaintiff does not have a property right that he claims in the sense of substantive law from the land registry office, which is only involved in the relevant capacity in the current case.
29. As a matter of fact, in a similar incident; the General Assembly of the Law dated 04.04.2019 and dated 2017/1-1261 E., 2019/408 K. since the trial procedures with the numbered decision are different from each other and there is no technical opponent in non-contentious judicial affairs, it has been accepted that the case cannot be continued in the civil court of first instance by making a decision of dismissal.
30. During the negotiations at the General Assembly of Law, it is stated that the rules of duty are related to public order and are also a condition of the case, on the other hand, the issue of determining who the title of plaintiff and defendant belongs to in a case will be determined entirely by the court charged with the rules of substantive law, in a concrete case, the plaintiff filed a claim for ownership of real estate by claiming the case is not really a contentious judicial work, and the court in charge is the court of first instance, although the opinion was expressed that the decision to resist the duty given by the local court should be upheld, this opinion was not adopted by the majority of the General Assembly of Law.
31. In that case, in the decision to disrupt the Special Chamber adopted by the General Assembly of the Law, as well as in the decision to disrupt it for additional reasons described above, it is necessary to comply with and make a decision on the merits of the work, while resisting the previous decision on the grounds that it is out of commission by the court is contrary to the procedure and law.
32. Therefore, the decision to resist must be overturned.
IV. result:
For the reasons described;
Provisional Article 3 of the Civil Procedure Code No. 6100 for additional reasons shown in the decision of the Special Chamber to overturn the decision of the plaintiff’s deputy to resist with the acceptance of appeals and described above. 429 of the Code of Civil Procedure No. 1086, which is being implemented in accordance with its article. in accordance CORRUPTION,
Upon request, the advance fee for the appeal will be returned to the depositor,
440/III-2 and 3 of the same Law. in accordance with the article, the decision was finally decided by a majority of votes on 08.07.2020, with the correction path closed.
VOTE AGAINST
1. Private apartment and the fundamental conflict between the Local Court, the trustee and fiduciary claims that it belongs to Muris the delivery of the decision to provide the removal of immovable immovable kayden owner name on the deed for the correction of the case, whether it is the job of the judiciary has opened registration correction uncontested, and consequently give rise to a violation of rights to immovable on the creation of a party is related to whether a fix that will not uncontested as to the result to be reached according to the magistrate’s court to the judicial affairs are collected at the point where you need to be seen in.
2. Local Court “immovable on the creation of a party that won’t lead to the violation of rights and it is the job of the judiciary of fixes uncontested, the plaintiff and the previous owners of the real estate registration information written in the records decisive and explicit credentials population the only non-land owners whose names have been identified with their own father at the same time on the plaintiff’s claims as Muris of this request is for the determination of immovable Maliki Muris, however, registration to the underlying document, the deed of maliki …’s other heirs, including shareholders and other immovable these individuals, even including the case had to be decided in a trial by the party to be held after the formation of the 382/2 case-on the grounds that it’s not held in subparagraph C that gave the decision on whether to charge the opinion of the majority decision of a private apartment with justification and further by adopting “correct the record of the case and in this case my case is shown on both sides of the Land Registry Office, Land Registry Office legal adversary, if it is determined that the heirs of the owner of the land registry are not shown to be parties, there is no real dispute, the plaintiff is not the heir of the land registry, the decision to resist is overturned on the grounds that ”the case should be dismissed” and the magistrate’s court is deemed to be in charge.
3. The decision of the Majority to overturn is not correct for the reasons described below, and in particular for the reason that the land registry owner, as the heir, wants the delivery of the real estate to him, makes a claim for ownership and, if it is understood that he is not the heir, the animosity must be evaluated in the court in charge.
4. The rules regarding the duty are from the public order (HMK No. 6100. mad. 1. sentence 2) and the fact that the courts are in charge is one of the conditions of the case (HMK No. 6100. mad. 114/1.c). Therefore, the court spontaneously (formally) examines whether there are officials (at all stages of the case) and, if it finds that there are no officials, spontaneously issues a decision on dismissal (art.115,1).
5. In other words, the owner of a right (plaintiff) or the debtor (defendant) who is obliged to comply with that right; in other words, to whom the title of plaintiff and defendant in that case will belong is determined entirely according to the rules of substantive law. However, if it is determined that the parties to a case do not have the title of plaintiff or defendant in respect of that case, the title of party is also in the scope of regulation of procedural law, since the court cannot examine whether the right to be sued exists and has to decide on the dismissal of the case due to the absence of the adjective. Whether a person has the title of plaintiff or defendant is determined according to material law, just as it is determined whether the right exists or not (Kuru, Baki-Arslan, Ramadan-Yilmaz, Ejder: Civil Procedure Law, Competent Publications, Ankara 1995, 7.print s.231., Ustundag, Saim. Civil Trial Law, Alpha Edition Publication Distribution, Istanbul 1997, p.307).
6. 382 of HMK No. 6100. as a general criterion in accordance with the article “Non-contentious jurisdiction is the application of the law by the courts to works that fall under this jurisdiction according to one or more of the following three criteria:
a) Cases in which there is no dispute between the interested parties. dec.
b) In cases where the parties concerned do not have any rights that can be asserted.
c) Cases where the judge has officially taken action.
As it can be seen, if there is a dispute between the parties or the party claims that it has a right, there will be no mention of non-contentious judicial work here dec
On the other hand, the same article “making corrections that will not cause the creation of a party to the real estate and violation of rights” is considered as a non-contentious judicial work in property law (382/o.1). According to this provision, the registration correction case will not be considered as a non-contentious judicial work if the party will be created at the request of registration correction and will cause a violation of rights.
7. In a concrete dispute, it is fixed that the plaintiff clearly states in the petition of claim that he is the heir of the land registry owner, that he has filed a registration correction case in the title deed for the removal of the trustee’s decision and the transfer of the real estate to him. The plaintiff makes a claim, and if the party is not created, a violation of the right will be caused. Then it is clear that this land registry correction case is not a contentious judicial matter, and therefore the court of first instance, which is the general court, and not the magistrate’s court, will be in charge. The opinion of the majority that the court should reject out of animosity if it is determined that the plaintiff claiming rights is not the heir is not correct according to the provisions mentioned. Because the animosity that has a material legal problem must be evaluated in the court in charge. The creation of a party to the registration correction case, in short, if there is a problem of hostility, since the dispute becomes contentious, the duty of the magistrate’s court will be eliminated by law. Since we found the decision of the local court to resist in place, the opinion of the honorable majority was not joined for the reasons described.
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