T.R. SUPREME COURT
- Law Office
Basis: 2014/506
Decision: 2014/18999
Decision Date: 23.10.2014
ACTION FOR DETERMINATION OF THE OWNERSHIP OF THE OWNERSHIP – IT IS NOT POSSIBLE TO SALE SEPARATELY FROM THE GROUND OF THE IMMOVABLE PROPERTY – THE PURCHASER HAS A LOSS OF LOSS ON THE SHARE OF THE IMMOVABLE SUPPLY.
SUMMARY: It is not possible to sell the property separately from the ground (supply) of the immovable. As such, with regard to the peach trees in the nature of incorporation, since the plaintiff M.. A.. A. purchased this part and it is in use and has taken over the seller’s right, it was not considered correct to reject it, while an acceptance decision should be made in this regard.
(6100 S. K. art. 26) (1086 S. K. art. 74) (4721 S. K. art. 684, 688, 718)
Case: Ş.. A.. and A.. A.. and their joint ventures, the plaintiffs M.. Ç. 353/244 judgment by the Court of Appeals has been requested by the defendant, the plaintiff’s attorney in the combined file, in due time; The file has been examined, the need has been considered:
Decision: In summary, the plaintiff’s attorney in the petition; A lawsuit was filed by the Buldan Magistrates Court over the file numbered 2011/263 to resolve the partnership of the immovable parcel numbered 352, which is the subject of the lawsuit, some expenses were made by the attorney for the part specified as the vineyard on the immovable, a high vineyard system was planted, an irrigation system was laid 500 meters away, explained that the high system costs (concrete pole, wire, T-bar, labor and expenses) were covered by his attorney and requested that the relevant constructions and their current values be determined by the expert.
Defendant-plaintiff M.. Ç.’s attorney in the lawsuit petition; In order to resolve the partnership of the immovable parcel numbered 352, which is the subject of the lawsuit, a lawsuit was filed over the file numbered 2011/263 of the Buldan Civil Court of Peace, that the attorney planted a high system bond on his own inheritance share, that the defendant F.. K.. actually used it during the trial. Announcing that he appropriated the peach trees, he requested that it be decided to determine that the peach trees, high system vineyard and useful expenses on the immovable belong to the agent. In his statement at the trial session, he defended the dismissal of the case in terms of the main case.
Defendant S.. Ç. and R.. Ç., in their statements at the trial; They defended the rejection of both lawsuits, explaining that plaintiff Şahin had uprooted the vineyard from his father and made a new vineyard, while the plaintiff Mehmet Ali had turned the empty field into a vineyard.
Defendant M.. A.; The plaintiff Ş.. A. had planted a vineyard 20 years ago on the subject of the lawsuit, the plaintiff Ş.. used his own shares, and the plaintiff Ş.. had nothing to say to his case, but the converged lawsuit plaintiff M.. Ç.’ By declaring that he did not accept the lawsuit, he defended the dismissal of the combined lawsuit.
Defendant A.. A..; explaining that the plaintiff Ş. is the father, that he sewed the vineyards subject to the lawsuit 20-25 years ago, however, the plaintiff’s son helped him in the works of the vineyard, and that the plaintiff M.. Ç. to the acceptance of the plaintiff Ş. A.’s case; defended the dismissal of the lawsuit of M.. A.. Ş.
The court partially accepted the case in terms of the main case. The plaintiff’s inheritance, A.. A. With the partial acceptance of the case in terms of the unified lawsuit, the claimant M.. Ç. Upon the decision to reject the claim regarding the surplus, the judgment was appealed by the defendant-plaintiff-plaintiff M. Ç. in terms of the main lawsuit and the combined action.
In terms of the main case, in the examination of the appeal objections of the defendant-plaintiff M.A.. A..;
Even though the court decided to determine that the constructions were made by the father of the plaintiff Ş., the inheritor of the plaintiff Ş. It is not possible to agree with this opinion of the court. Namely; from the evidence collected and the scope of the entire file; The immovable with parcel number 352, which is the subject of the lawsuit, is registered in the title deed with the title of “field” in the name of the main lawsuit and the plaintiffs of the combined lawsuit and the defendants, except for the defendant F.. K. that the irrigation system for the vineyard was built by the father of the plaintiff Ş.. A.., A.. A.
It is seen that he is the owner of the case and is at the defendant level in the main case and the combined case. It should be noted right away that; According to the provision of Article 26 (74 of the HUMK) of the HMK numbered 6100; The court is bound by the claims, defenses and demands of the parties. It is not possible for the court to decide more than the demand or anything else. In the concrete case, the father of the plaintiff Ş.. A.., A.. A. Although there is no lawsuit or demand, it is against the procedure and the law for the court to decide with a written justification that the contents of the lawsuit belong to A.. A..
As for the examination of the appellate objections of the defendant-plaintiff M.. A..A. against the combined action;
From the content of the petition and the evidence gathered, it is stated that the peach trees subject to the lawsuit requested to be determined were planted by F. K., who was a shareholder in the immovable before, and that plaintiff M.. A..A.’s previous stakeholder F.. K.. It is understood that he filed the lawsuit claiming that he bought it from It should be noted right away that; According to the provision of article 684 of the Turkish Civil Code numbered 4721 regarding the scope of the right of ownership, the owner of something also owns the integral parts of that thing, and according to the provision of article 718, the ownership of the immovable also includes the contents of the land, which are integral parts of the land. Again, as explained in Article 688 of the same Law, in shared ownership, more than one person owns the whole of something that is not materially divided, with certain shares. When the legal facts explained are taken into consideration, the person who buys a share from the real estate supply also becomes the owner of the assets on it in proportion to his share. It is not possible to sell the property separately from the ground (offer) of the immovable. As such, with regard to the peach trees in the nature of incorporation, since the plaintiff M.. A.. A. purchased this part and it is in use and has taken over the seller’s right, it was not considered correct to reject it, while an acceptance decision should be made in this regard.
Apart from this; It has been understood that the vineyard vines grown by the plaintiff Mehmet, the subject of the combined lawsuit, were planted during the trial and were not in the nature of muhdesat. Although it was not considered correct to give an admission decision in terms of the vineyards mentioned by the court; No grounds for revocation have been made in terms of the appellant’s title.
Conclusion: The appeal objections of the defendant-plaintiff M.. A..A.’s attorney are valid for these reasons. With the acceptance of the provision, with the sending of the Provisional Article 3 of the CPC numbered 6100, it was determined that there was no room for examination of other issues for now, pursuant to article 428 of the HUMK no. (HMK m.297/ç) and HUMK Articles 440/I, it was unanimously decided on 23.10.2014 that a request for correction of the decision can be made against the decision within 15 days following the notification of the Supreme Court Chamber’s decision and that the cash fee of 149.90 TL is refunded upon request. . (¤¤)
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