TC
Supreme
law Office
2015/9657
2016/10945
8.11.2016
4721/m.989
THE CASE :
The plaintiff … acting against the defendant on 07/03/2014 at the end of the trial with the defendant’s petition requesting the determination and registration of vehicle ownership by the court; the Court of Cassation decision dated 08/04/2015, issued to be heard at the hearing requested by the defendant’s attorney, but upon notification of the hearing to which the defendant appealed, decided in advance on the day of the hearing, 08/11/2016, the defendant’s appeal petition should not come from the opposing side upon arrival. Open trial has begun.
After the decision has been made to accept the appeal petition, it is understood that it is in time and the oral statement of the person present has been heard, the party has been informed that the hearing has ended. The file has been discussed. The report issued by the Court of Accounts judge and the documents in the file have been examined and discussed as required:
DECISION:
The case is related to the request for the determination and registration of vehicle ownership. Court decided to accept the case and the decision was appealed by the defendant.
Plaintiff requested that the vehicle belonging to him was taken out of his hands without his consent, a public lawsuit was filed against the non-defendants for fraud, the vehicle was first transferred to the non-defendant …, from him to the non-defendant … and from him to the defendant, the transfer transactions were invalid, the ownership of the vehicle belonged to him and was registered on his behalf.
The defendant argued that the case should be dismissed, stating that he was a bona fide third party and bought the vehicle from the gallery.
The court concluded that the defendant had good intentions, but when the situations of the owner who took the vehicle away of his own accord on the one hand, and the defendant who bought the vehicle in good faith on the other hand were evaluated, the plaintiff’s victimization should be considered superior, the defendant did not put forward a defense that he bought the vehicle from a place such as an auction or a gallery selling vehicles, it was decided to accept the case on the grounds that he did not put forward a defense that he bought the vehicle from an auction or a gallery selling vehicles.
10 Of the law No. 989, which bears the main title of “Savings Authority and Movable Property Case” of the TMK. in the article; “The possession of a movable property that has been stolen, lost or otherwise taken out of his hands against his will may open a movable property lawsuit against the person who has that thing in his possession within five years. Paid Sunday or similar goods from those who sell, if this movable property was acquired in good faith; a movable property lawsuit against the first and subsequent buyers in good faith can only be filed on the condition of a refund of the price paid.” the judgment is fixed.
As can be understood from the text of the article; If a bona fide third party buys from someone selling an auction, Sunday, or such a thing without the consent of the owner, it is conditional on the original owner winning both the restitution case against this person and subsequent subsequent obligations. In such cases, the price given by a bona fide third party to purchase this property must be returned to him by the plaintiff requesting restitution, that is, by the original owner. If this condition is not met, the court cannot accept the extradition case filed by the original owner. (Decision of the General Assembly dated 25/09/2002, 2002/4-608 Basis, Decision No: 2002/643)
In the concrete case, the defendant claimed that he bought the vehicle subject to the lawsuit from a person named … who is a gallerist, that is, from Otomotiv; as evidence, he removed the notarized sales deed dated 28/04/2011 for the transfer of the vehicle and …’s tax registration information from the case. The article dated 24/11/2014 addressed to the court by the Malatya Tax Office Directorate, it is reported that the department named … registered to the tax number … has been engaged in automobile and light motor vehicle retail trade in its apartments since 17/07/2009 and its activities are still continuing.
In this case; it is understood that the defendant bought the vehicle from a person who sells such things. On the other hand, it has been accepted by the court that the defendant has good intentions. On the contrary, an allegation and evidence are not included in the scope of the file. In that case, the plaintiff can only get his vehicle back from the defendant by paying the price. Although the court should have decided to accept the extradition case if the price was paid, the decision was overturned due to the fact that the sentence was not in accordance with the procedure and the law without taking this issue into account.
According to the acceptance, registration is an administrative procedure, and the decision to cancel the registration with the traffic registry and to make a registration and a new registration is a decision that forces the administration to take action. However, a decision of the kind that forces the administration to take action cannot be made in a judicial place. The court should be content with making a ruling only on the determination of ownership, it is also not true that it has decided to cancel the traffic registry registration and make a new registration and registration.
CONCLUSION:
It was unanimously decided on 08.11.2016 to OVERTURN the appealed decision for the reasons shown above, to charge the plaintiff the trial proxy fee in the amount of TL 1,350.00, which was appreciated in favor of the defendant, and to refund the fee received in advance if requested.