8. Legal Department 2013/23561 E. , 2014/16474 K.
“text of jurisprudence”
COURT : Düzce 2. The Court Of First Instance
DATE : 27/10/2011
NUMBER : 2011/106-2011/244
O.. Finish.. with N.. Finish.. and his clients about the rejection of the claim for the determination of ownership between them Dec 2. 27.10.2011 The Court of Cassation has requested the deputy plaintiff to examine the judgment No. 106/244 issued by the Court of First Instance within the period of 27.10.2011 days; the file has been examined, it has been considered necessary:
decision
The plaintiff’s deputy filed a petition in Düzce 2. Explaining that the case file No. 2006/1754 and Decision No. 2009/644 of the Magistrate’s Court and the case file No. 87 were filed, concluded and approved to resolve the partnership in terms of parcels, he asked to determine that the one-story house and two dryness houses located on the said parcel belong to the trustee of the property.
Defendant H.. S.. at the trial session dated 28.06.2011, it was reported that the one-story house and two dry houses on parcel 87 were built by the plaintiff, but the real estate remained from his father and was transferred to us heirs.
Other defendants were notified of the lawsuit petition, but they did not participate in the trial sessions and did not respond.
By the court; “…the case of the elimination of the related partnership move opened, and determined to onanar the decision made that is not a question of expropriation, the request that is related to the identification of muhdesat belonging to the request, the need for legal protection in other ways, it is completely fixable if you want the benefit of the plaintiff to the identification of the legal relationship that is not legal.,..” upon the decision to dismiss the case on grounds of refusal, the judgment was appealed by the deputy plaintiff.
The case is related to the request of who made the memorandum on the immovable property.
Although the court decided to dismiss the case due to the lack of legal benefit, it does not have the opportunity to participate in this justification of the court.
Although it was not included in the HUMK, the “principle of legal benefit” was accepted and applied as a condition of litigation in terms of opening a case in accordance with the Supreme Court practice. In accordance with the preparation of HMK No. 6100, this principle of legal benefit, inspired by the practice, was made a provision of the law. It is seen that the principle of “the plaintiff has a legal interest in filing a lawsuit” is considered to be among the terms of the lawsuit in the 114/1-h subparagraph of the HMK dec the title of the terms of the lawsuit. In cases where there is a principle of legal benefit, there is no need to open a case in a court first, then get authorization from this court for the execution or performance of any work, as well as to put something into enforcement proceedings first, after certain stages, there is no need to open any case by obtaining authorization from the enforcement director. Otherwise, there will be a decommissioning or limitation of the rights search paths.
As a matter of fact, DEC 36 of the Constitution is entitled Freedom of search for rights. in its article, it emphasizes that “Everyone has the right to a fair trial with claims and defense as a plaintiff or defendant before the judicial authorities by taking advantage of legitimate means and means”. It is dec that the rights search paths are kept open, and the restriction or complete closure of this cannot be left to the discretion of people, institutions and organizations. Article 6 of the European Convention on Human Rights dec article also emphasizes the right to freedom of search and the right to a fair trial. The decisions of the Constitutional Court and the decisions of the European Court of Human Rights are also in this direction.
Article 90 of the Constitution on this issue. its substance is also impossible to ignore. 90/5 of the Constitution. according to its paragraph; “International Treaties that have been duly entered into force are in accordance with the law. The Constitutional Court cannot be contacted about these things by claiming that they are contrary to the Constitution. International treaties on fundamental rights and freedoms duly put into effect with provisions different laws on the same subject of disputes that may arise due to the inclusion of the provisions of international treaties shall prevail,” clearly when you have different provisions on matters of fundamental rights and freedoms that may arise is known for the superiority of the provisions of international treaties. With this provision in question, the restriction or closure of the right to seek rights is also mentioned in Article 90 of the Constitution. dec. it creates a violation of its substance.
Apart from this, no one may force another to sue, pursue or act in any way or guide in one way or another first.
In this regard, in order to decide on the determination of the belonging of the memorandum, it is impossible to limit it to two or three reasons, as explained by the majority in its justification. However, there is no legal basis for this limitation. The main thing is to keep the way for rights and freedoms open. This decisively means limiting the freedom of persons or institutions and organizations to seek rights. Therefore, it is impossible to disagree with this opinion.
8. The Legal Department, by its decision dated 15.10.2007 and No. 2007/4224 Based on Decision No. 2007/5537; “… the move the premises of the plaintiff is not a stakeholder, stakeholders and externally with an immovable portion of the common shares on buying from one of invalid qualified building made muhdesat involved in the case, when the plaintiff resides in the position of a third person, this is where there is a dispute about the record owners (stakeholders) in the case of the partnership between the elimination of opened through the sale of the partnership in case of a decision to eliminate the parcel is located on muhdesat move (ground) without hesitation with regard to where they will be sold together, accordingly, the VIOLATION was referred on the grounds that the plaintiff (the owner of the external sales deed) had a legal interest in determining the value of the house located on the real estate and to whom it belonged, and in this regard, the court decided to reject the plaintiff’s request for determination of the memorandum …”There was no hit in the court’s decision to reject the claimant’s request …”. The decision of the Local Court to RESIST was OVERTURNED by Decision No. 2009/116 of the HGK dated 11.03.2009 and based on 2009/8-75 on a broader basis.
As can be seen, 8. The Legal Department recognizes that the plaintiff has a LEGAL INTEREST in the case of determining that the memorandum was made (made) by him, even to the plaintiff who bought the TITLE DEED real estate with an invalid external sales contract and has nothing to do with the title deed registration, and the GENERAL ASSEMBLY of the Supreme LAW also emphasizes that the plaintiff has a legal interest and decides to overturn the decision to resist.
High 7 again. Law Office “ opened the case of the elimination of the partnership related move, the process of expropriation is not in any, in this regard the determination of the plaintiff’s legal muhdesat belonging to one of the benefits of the opening of the case that should not have to warrant the reversal cannot be considered and dismissed the case, and date of HGK 05.10.2012 2012/7-334 Main 2012/650; 28.03.2014 date and 2013/7-670 2014/423 Basis (related to the subject of this judgment was sued for muhtesat after the elimination of the partnership between the stakeholders of a case was opened. However, legal benefit is a condition of litigation and is sought on the date of filing the case, and although this is the principle, HGK has accepted that the plaintiff in such a situation has a legal benefit.) and dated 31.07.2007 and based on 2007/7-830, 2007/801 (after the DECONSTRUCTION of the local court decision on the determination of the belonging of the muhdesat subject to this decision, a case was filed to eliminate the partnership between the stakeholders. The information shown in parentheses with the second decision of HGK is valid within this decision.) The decision has not adopted the opinion of the Private Department, which has been accepted that the plaintiff has a legal interest with its numbered decisions, limited to the two grounds in the decision to overturn.
As it is clear from the scope of the file, the decision to accept the parcel Dec. 87, which is the subject of the lawsuit, was approved by the Supreme Court of Cassation, according to the land registry record found in the file, although the real estate is a field, from the information and documents in the file, the defendant H., who is among the owners of the parcel Dec. 87, where there is a one-story house and two institutions on the real estate, subject to joint ownership, subject to the ownership of the real estate.. S..considering the statement of the dated 28.06.2011, it is necessary not to hesitate that the plaintiff has a legal interest in opening such a case. It is a fact that when the parcel No. 87, subject to the ownership of the cooperation, is put up for sale, the one-storey house and two dry houses located in the case of its trustee (integral part) will be put up for sale together. In such a case, it is far from any doubt that the plaintiff will also be deprived of the essence of the right and will have to file other lawsuits, and the plaintiff has to file such a lawsuit again in order to receive the money for a one-story house and two dryness units from the sale money.
Considering all these statements made, the decision to reject the request on the grounds that the plaintiff does not have a legal interest may mean sacrificing the essence of the right to the figure.
HMK’s 106/2. in accordance with the subparagraph, it cannot be said that the plaintiff does not have a current benefit worthy of legal protection in filing such a lawsuit.
In the face of these concrete and legal facts determined, a positive or negative decision should be made about the plaintiff’s request by collecting the evidence of the party in accordance with the claim and defense and evaluating it together by bringing a file on the elimination of the partnership, while it is not correct to decide to dismiss the case in the absence of legal benefit.
Provisional Article 3 of HMK No. 6100 of the provision of the local court on the acceptance of appeals of the plaintiff’s deputy for the reasons described. article 428 of HUMK No. 1086. in accordance with Article 388/4 of the CMB, the parties are obliged to (H.M.m.297/ç) and in accordance with Articles 440/I of the CMB, it was unanimously decided on 19.09.2014 that a request for correction of the decision may be made against the announcement within 15 days from the notification of the Supreme Court’s Office and that the advance fee of 24.30 TL may be returned to the appellant upon request, on 19.09.2014.
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