General Assembly of the Law 2017/2262 E. , 2019/649 K.
“Text Of Jurisprudence”
COURT OF First Instance: Court of First Instance
At the end of the trial held for the case “Cancellation and registration of title deeds based on the right of pre-registration”, which was decoupled between the parties, Mardin 1. The decision issued by the Court of First Instance on the acceptance of the original and combined case dated 16.05.2013 and dated 2010/864 E., 2013/180 K. decision No. 14 of the Court of Cassation was appealed by the deputy defendants. The Law Department has a certificate dated 24.06.2014 and dated 2014/6863 E., 2014/8456 K. if it was overturned by decision No. 1 of the Special Chamber dated 15.12.2014 and dated 2014/15483 E, this time upon the request of the plaintiff’s deputy to correct the decision., 2014/14359 K. by his numbered decision:
“…Move from the previous case that the plaintiff is a stakeholder numbered 5 parcels premises to the defendant transferring their shares by selling shareholders, the notification was not made, the actual share of sales the sum of the value 532.000,00 TL, although citing the right of preemption to prevent high on the deed showing the actual value of shares registered in the name of the defendants due to preemption over to the registration on behalf of the wanted.
The defendants’ counsel has defended the dismissal of the case.
The court accepted the muvazaa claim at the price, and the total amount of TL 594,076.00, including the determined value of the part sold and the title deed costs, was stored and the case was decided to be accepted.
The decision was appealed by the deputy defendants.
According to the Decree No. 2014/6863 of 2014/8456 dated 24.06.2014 of our department, “The plaintiff’s claim to muvazaa should not be respected, since abstract witness statements alone are not sufficient to prove the claim to muvazaa at the expense of the rejection of appeals of the defendant’s attorney outside the scope of the following paragraph. In this case, the plaintiff was impaired by the fact that a decision should be made ”according to the result by giving the plaintiff time to store the prepayment consisting of the sales price of the shares subject to litigation and the sum of the mandatory fees and expenses to be paid”.
The deputy plaintiff has requested a correction of the decision.
1-According to the evidence collected during the trial and the scope of the file, the plaintiff’s attorney’s objections to the correction of the decision outside the scope of the following paragraph were not seen on the spot, and their rejection was required.
2-However, the case is related to the cancellation of the title deed and the registration request based on the muvazaa claim at the price due to the right to pre-emption. Since the plaintiff’s failure to prove his/her claim in the price, the prepayment fee is 734/2 of the TMK. pursuant to the trust deed, which is the sum of the costs shown in 1.500.000,00 TL with the sale price paid by the defendants, fees and land costs than the sum of the defendants dated 04.10.2013 dated 07.02.2013 attorney at the hearing and the statement relating to the shares that are the subject of Appeal in the case of preemption 921.000 clearly determined in the cost of the expedition,00 TL accepts that this price is to be paid by the defendants in terms of price and because that the land registry will store the sum of the fees and costs asked by the plaintiff according to the results of whether or not a decision must be made.
Since the deterioration of the decision for the different reason was based on material error, while the decision should be overturned for the reason described, it was necessary to decide on the deterioration of the provision by accepting the decision correction request.…”
at the end of the retrial, the court resisted the previous decision by overturning the grounds and turning the file back to its place.
DECISION OF THE GENERAL ASSEMBLY OF JURISPRUDENCE
After it was understood that the decision to resist was appealed during the examination by the General Assembly of the Law and the decision to resist was made, the Civil Procedure Code No. 1086 was amended by Law No. 2494 and 438 / II as of the date of Law No. 438 / II. in accordance with the provision of paragraph 1, the refusal of the request for a hearing was decided and discussed as necessary after reading the documents in the file, since no hearing could be held on the appeal review of decisions to resist:
The main and combined case concerns the cancellation of the title deed and the request for registration based on the right to pre-emption.
Deputy principal plaintiff in the case and coupled to the client stakeholder and shareholder No. 5 island Kayden move the premises 334 parcel Leman (Lamia) that he was also heir Öztürk, previous to the defendant during the sale made by the stakeholders of the sale price of the share of extremely high and unrealistic as shown, TMC 733. claiming that no notification was made through a notary pursuant to the article, he requested and sued that the shares belonging to the main and merged file defendants in the immovable property be decided to be registered on behalf of the plaintiff with the cancellation of the title deed registration provided that the actual sale price and the sum of the title deed costs of TL 577,000 are stored.
The deputy defendants; stating that the price shown in the title deed is the actual sale price, the plaintiff, who was aware of the share sale, filed this lawsuit to buy the real estate at a low price, did not have good intentions; argued for the decision to reject the original and merged case separately.
By the court, “parcel of immovable cultural asset No. 5 344 island, where the difference between the sales between the dates 13.07.2010 27.04.2010 to share exorbitant price, the sale price of a share of the product in such a short time in the life of it is contrary to the nature of the differential and of some of the witnesses listened to the entire value of immovable 1.150.000 TL resides in a statement that was made over this amount determined as of the purchase offer, these matters validated with the records of the bank, therefore, on the grounds that the plaintiff’s claim to muvazaa has been proven at the cost of ”the acceptance of the original and merged cases has been decided by depositing the amount of TL 594,076 as the sum of the sale price and title deed costs.
Defendants appeal the decision on the Special Counsel dairec “the poet appeals attorney with the rejection of the appeal of the defendants, the plaintiff’s claim at the cost of muvazaa, in terms of information based on the experience of the witnesses as to whether you have just heard the testimony that contradicts that are abstract representations involving the expert report, witness statement offered no other evidence except that it was not; abstract alone is not enough to prove that claim in the cost of witness statements referred to muvazaa claim that the plaintiff cannot be considered; in this case, the claim was overturned on the grounds that ”a decision should be made according to the result by giving the plaintiff time to store the prepayment consisting of the sum of the sale price and title costs of the shares subject to litigation within an appropriate time to be determined before the judgment”.
Upon the request of the plaintiff’s attorney to correct the decision, the decision was overturned by the Special Department, this time on the grounds described in the title section above.
The court decided to resist on the previous grounds and in particular by emphasizing that the witness statements confirming the plaintiff’s claim to success in the price were supported by bank records, as well as the fact that the real value of the real estate was not shown in the sales deed was confirmed by an expert report.
The decision to resist was appealed by the party’s deputies.
The dispute that comes before the General Assembly of the Law by way of resistance is collected at the point of whether the plaintiff’s claim to success in the price has been proven in the case at hand.
1-From the point of view of the appeal of the Defendants … and Narcissus Ece Universal surrogates;
As it is known, since there is a situation of joint management and use between stakeholders in shared ownership, it is important dec stakeholders to know and get to know each other. This requirement among stakeholders as to prevent the entry of a foreign person or immovable, in order to avoid breaking it into smaller pieces, the collection shareholder of stock in the hands of as few as possible in order to ensure the right to assign the rights of shareholders in real estate joint by limiting the right of lien has been granted. The right of preemption; it is one of the installments of immovable property ownership arising from the law and in the Decision No. 1/6 of 26.12.1951 to Merge the Case Law “As confirmed by the case law No. 3 of 19/6 of 16.05.1951, the right to shufa is a civil right” was stated.
On the other hand, 20.06.1951 1949/13 dated, based on Decision No. 1951/5 preemption case law on the right of the legal nature of the decision to merge “real estate takyit ownership of the statutory pre-emption of a share of stocks in owning real estate is sold to a third party if the other party to those of stocks what is the cost to the customer if the authority to buy with that amount within a certain period of time and that gives the same rights. This right to a third party mefsu on sale of shares will be sold and to be used within one month from ittila will be used under certain conditions, such as the birth of founding that is right innovation, with the unilateral declaration of sefii to use this right on the road at the customer created a new legal situation allows. By using this right, the chief becomes the successor of the customer without the need to make a new contract,”it was explained.
Article 732 of the Turkish Civil Code No. 4721 (TMK) regulates the legal (legal) right of preemption in the form of “if a stakeholder in the shared ownership sells his share in real estate to a third party in whole or in part, other stakeholders may exercise the right of preemption”.
Although no clear definition of the right to pre-emption has been made in the mentioned regulation, this limitation has been limited while the shareholder’s right to representation has been limited, taking into account that the basic principle is freedom of ownership and savings authority, and the right to pre-emption has been provided for only for the sale agreements.
This issue was also highlighted in the Decision No. 5/13 of 20.06.1951 on Combining Jurisprudence, the content of which was described above.
As it is clear, in order to be able to speak about the legal pre-emption right, the share in a real estate subject to the provisions of shared ownership must be sold to a third party; the subject of the pre-emption right is the sale of shares.
With the exercise of the right of decriminalization, a new legal situation occurs between the stakeholder exercising this right and the buyer, the scope and terms of which are the same as the contract concluded between the seller and decedent.
The prepayment price is the sum of the sale price shown in the title deed and the fees and expenses paid by the defendant. However, a stakeholder who has filed a preliminary claim can make a claim for non-compliance at the price because he is not a party to the sales agreement and can prove this claim with any evidence, including a witness.
In the concrete dispute; the plaintiff has made a claim for non-compliance in the price by claiming that the prices of the shares subject to the pre-emption right are actually a total of 577,000.00TL, but that the share prices are shown as exorbitant amounts of very high prices to prevent the right to pre-emption. The plaintiff relied on witness statements, discovery and expert examination to prove his/her claim in the case petitions.
The result of the discovery made by the court of civil engineers, architects and dated 25.10.2011 report issued by the expert committee of the real estate and all 1.787.723,it was reported that 83 TL; plaintiff witnesses listened to if in the whole of the immovable 1.100.000,00 TL stated that, based on the statement of this witness and the court by taking the total value of the real estate 1.150.000,00 TL case the price of the shares subject to 593.752,00 TL are not considered, the cost of this land found by adding 594.076 costs,00 TL was stored as the cost of preemption.
However, it is not correct for the court to decide on the basis of witness statements that do not contain an opinion-based narrative about the share prices between the defendants and those who transferred shares to the defendants, and also contradict the expert report. Because abstract witness statements are not enough to prove the plaintiff’s claim to success at the price. The plaintiff has not been able to prove his claim to success in the price. However, since the deputy defendants requested that the warehouse decision be made at the price determined by the expert committee report, it is also clear that this statement should be observed.
In that case, while it is necessary to comply with the court’s decision to overturn the Special Chamber adopted by the General Assembly of the Law, it is against the procedure and the law to resist the previous decision.
2- From the point of view of the defendant’s appeal;
As is known, if there is no limiting reason after the lawsuit has been filed, the transfer of the property or right subject to litigation to third parties is a requirement of the freedom of savings rule, and it is a natural consequence of being a right holder or owner. In our Procedural Law, it has also been accepted that the goods or rights subject to litigation can be transferred during the continuation of the case, except for discrete cases, and HMK No. 6100 is 125. in the article, procedural actions to be taken in the event of transfer and assignment of the subject matter of the case to a third party have been organized by the parties.
In the article mentioned;
“(1)If, after the opening of the case, the respondent party transfers the subject matter of the case to a third party, the plaintiff may exercise one of the following powers:
a) If he/she wishes, he/she can continue the case against the person who has taken over the subject matter of the case by renouncing his/her case with the transferring party. In this case, if the plaintiff wins the case, he will be severally liable for the costs of the trial that transferred and inherited the subject matter of the case.
b) If he/she wishes, he/she converts his/her case into a compensation case against the transferring party…” the provision is included.
As can be understood from this regulation, the court should formally consider the issue of the case to a third party and be subject to Article 125 of HMK No. 6100, which is an exception to the prohibition on changing the case or defense. in accordance with the article, the plaintiff must be given time to exercise his/her right of choice.
The defendant in a concrete case …’s the subject of proceedings in case No. 344 parcel immovable Island 5 from the previous share to share this because it was to get buy in from stakeholders on 16.07.2010 opened the case at hand, the trial continues as the cancellation of the deed and registration at the stage of Appeal after the decision to share on the date of the last name of the defendant in the case is transferred outside of the case 11.08.2016 Ahmet Yilmaz, it is understood that the third party.
The plaintiff party also filed a petition dated 09.02.2018 with the HMK’s 125. in order to exercise his electoral right in the article, he demanded that a decision be made to overturn it. In this case, in accordance with the principles described above by the court, the plaintiff is required to comply with Article 125 of HMK No. 6100. in accordance with the article, it is necessary to make a decision according to the result by recalling the right to choose.
As a result, the decision of the local court to resist must be overturned on this different basis described above from the defendant’s point of view.
CONCLUSION: 1-For the reasons described in the decision of the defendants … and the decision of the Nergis Ece Universal attorneys to resist the acceptance of the appeals and to disrupt the Special Department from the direction of these defendants,
2-appellate counsel with the adoption of the objections of the defendant, the defendant 6100 with a different rationale to the terms described above, this provision) of the code of Civil Procedure 3rd hereof pursuant to this law being implemented in accordance 1086 429 of CORRUPTION in the temporary,
3-According to the reasons for the violation, there is no place for the plaintiff’s attorney to examine the appeals for the time being, if requested, the appeal will be returned to the depositors in advance, in accordance with Article 440 of the same Law. in accordance with the article, it was unanimously decided on 13.06.2019 that the way to correct the decision would be open within fifteen days from the notification of the decision.
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