Events
The applicants are the joint owners of the immovable property numbered 434 parcels. Upon the sale of real estate No. 435 parcels of agricultural land bordering on the said real estate, the owners of real estate No. 434 and 436 parcels filed title cancellation and registration lawsuits due to the right to pre-purchase.
A, who is the owner of immovable property numbered 436 parcels.S.in the case filed by the on 23/8/2016, an injunction was issued by the court of first instance on 7/9/2016 in order to prevent the sale and transfer of real estate to third parties, and this decision was entered into the land registry.
The applicants filed a lawsuit on 12/12/2016. Although both cases were filed in the same court, the cases were decided by different judges. In the case filed by the applicants, the court of first instance decided on 7/3/2017 and ruled on the registration of the immovable property in favor of the applicants. The decision has been finalized without recourse to legal means. The applicants requested that the immovable property be registered in their names as required by this provision. The court of first instance, a.S. due to the fact that a lawsuit was filed by him at an earlier date, he instructed the land registry office not to register the real estate in favor of the applicants, and the land registry office rejected the applicants’ registration request.
A.S.the lawsuit filed by the court was decided by the court of first instance on 19/7/2017 and the real estate was transferred to A.S. registration of the name has been decided.
In addition, the applicants filed a lawsuit in the administrative court twice with the request to cancel the administrative action on the rejection of the registration request, and the administrative court rejected both cases on the grounds that the land registry office did not fulfill the registration request in accordance with the request of the civil court of first instance and established the transaction within the framework of the attached authority. The appeal against the decisions was rejected by the district administrative court.
Claims
The applicants claimed that the right of ownership was violated due to the non-execution of the court decision, which ruled on the registration of real estate based on the right of pre-purchase.
Evaluation Of The Court
Although the land registry office was hesitant to execute the registration decision made in favor of the applicants due to the fact that the court of first instance issued an injunction on 7/9/2016, it is clear that the injunction decisions did not constitute an obstacle to the registration of the court’s provisions. The injunction is aimed at preventing the real estate owner from selling or transferring his real estate to third parties, and does not have a function of preventing the execution of the court’s provisions. In the decision of the court of first instance dated 19/7/2017, A.A.there is also no acceptable side to the opinion that the acceptance of the case is actually a consensual transfer of real estate. Defendant A.A. if he has accepted the case, the ownership of the immovable property is A.A.it was submitted to the applicants by a court decision, not by acceptance. On the other hand, it is at the discretion of the judge looking at the mentioned case to evaluate whether the parties to the case have bad intentions. Even if the judge makes a mistake otherwise, the binding nature of his decision does not disappear. Therefore, the land registry office cannot refrain from executing the registration decision by citing the injunction. Failure of the land registry office to execute a court decision is Article 138 of the Constitution. it clearly violates the article.
In addition, in the concrete case, it was observed that the land registry office refrained from executing the registration decision issued in favor of the applicants in accordance with the instructions of the court of first instance. It should be noted that it is not acceptable for a judicial authority to send instructions to the administration not to execute a decision made by another judicial authority or by itself, unless it has a legal basis. Considering that the decision is unlawful does not make it legitimate for the courts to stop the execution of a decision by a procedure not provided for in the law. The execution of unlawful decisions can be stopped only by following the methods provided for in the relevant procedural laws. Any intervention other than this is prohibited by Article 138 of the Constitution. it contradicts its substance.
In the article sent by the court of first instance to the land registry office and containing the instruction not to register the immovable property in favor of the applicants, it was observed that the emphasis was placed on the fact that the injunction decision was issued before the applicants filed a lawsuit. 5403) soil conservation and land use law within the scope of the availability of the right of pre-conditions, determination of owning multiple flanking and decide how to use this right by the border will be given to the lawsuit in favor of a preliminary injunction to be granted to resolve the issues that they create an obstacle to the other next it is not the role of the Constitutional Court. These issues are problems related to the merits of the right of pre-purchase regulated by Law No. 5403, and it is the job of the courts of instance to resolve them.
However, the court of first instance made a decision by considering these issues in the case filed by the applicants. The issue before the Constitutional Court is not whether this decision is in accordance with the Law No. 5403, but whether its execution violates the right to property. A. of the court of first instanceS. the decision of the injunction granted in the case filed by A.S.ye if he thought that he recognized a superior right and prevented the registration decision from being made in favor of the applicants, he should have taken this into account before making a decision in favor of the applicants. After the decision was made, the civil court of first instance sent an administrative letter to the land registry office implying that its decision was wrong and asking the land registry office not to implement the decision 138 of the Constitution. it is not compatible with its substance, nor is it incompatible with seriousness. Even if it is legally erroneous, the execution of the court decision is mandatory, unless it is eliminated in accordance with the procedures provided for in the law.
The idea that the rights of third parties will be damaged also does not make it legitimate for the court of first instance to instruct the land registry office not to execute the decision. On the date when the applicants filed a lawsuit, A.S. it has been seen that the case filed by him is also a matter of concern. It would be appropriate for the court of first instance to consider both cases together and decide after that from the point of view of good administration of justice and procedural economics. However, it has been evaluated that the court of first instance tried to remedy this negligence and failure in file management by stopping the execution of the decision without any legal basis, thereby depriving the applicants of the right to execute a court decision issued in their favor.
In the cases filed by the applicants, the administrative court also concluded that it was in accordance with the law for the land registry directorate to reject the registration request by stating that it was within the bound authority to carry out the instructions of the court of first instance. Article 138 of the Constitution of the court of first instance of the administrative court dated 7/4/2017. it was found that he did not conduct an audit to see if it was contrary to his article. It is clear that it is not of a judicial nature, the recognition that the said client is binding on the land registry office and the avoidance of an examination of the main issue in the dispute has led to the fact that an effective judicial audit has not been conducted.
As a result, the non-execution of the registration decision made in favor of the applicants is prohibited by Article 138 of the Constitution. it has been concluded that the court decisions contained in the article are binding and contrary to the assurance that they must be fulfilled without delay.
The Constitutional Court has decided that the right to property has been violated on the grounds described.