EN SUPREME COURT
Law Office
Originally: 2016/3944
Verdict: 2016/7541
Decision Date: 28.06.2016
OBJECTION ACTION TO CADASTRAL DETERMINATION – A REPORT SHOULD BE OBTAINED FROM THE AGRICULTURAL ENGINEER TAKING INTO ACCOUNT THE PURPOSES OF THE LAW AND A DECISION SHOULD BE MADE ABOUT THE RESULT
SUMMARY: Whether the real estate subject to the lawsuit is irrigated or dry agricultural land (According to the second paragraph of Article 3/j of Law No. 5403 and the provision of the second paragraph of Article 10 of the Regulation on the Restriction, Detection and Inspection of Immovable Property, irrigated agricultural land: Located in the cultivation circuit of cultivated plants. It is necessary to obtain a report from the agricultural engineer in accordance with the purpose of the law and make a decision within the framework of the resulting result.)
(6831 SK md. 17) (3402 SK md. 14)
Case and Decision: After the Supreme Court decided to examine the provision established at the end of the hearing of the case between the parties, the defendant and the domestic defendants …, …, … and …, the necessary examination was made by examining the file upon Decrees of acceptance of the petition of appeal, which was apparently granted during:
The plaintiff, with his petition dated Dec. 26/05/2008; In the cadastral studies conducted in accordance with the provisions of Law No. 3402 amended by Law No. 3402, claimed that the areas outside the boundary line are also among the places counted, and requested registration of these real estate on his behalf. In the land registry cadastre, parcels numbered 134 on island number 1 and 98 on island number 101 are shrubby, on island number 101 95, 96, 97, 99, 100, 101, 102, 103 and the parcels numbered 104 are 4964.14 m2, 715.31 m2, 9652 m2 respectively.
Its surface area is .owner’s households were the defendants for real estate properties of 25 m2, 4292.34 m2, 8048.06 m2, 7816.12 m2, 4346.06 m2, 9193.80 m2, 11.282, 75 m2, 3154.66 m2 and 3093.26 m2. The cadastral minutes were edited and sent to the court. As a result of the trial conducted by the court with the addition of the material minutes to the case, the case was accepted and 134, 1, 101, 3, 95, 96, 97, 98, 99, 100, 101, 102, 103 and the immovables numbered 104 were registered and declared to the title deed and registered. The verdict has been rendered, and the verdict is the defendant and the internal defendants …, …, … and …. it has been appealed by.
The case is related to the case of objection to the cadastre and cadastral determination.
There are cadastral studies carried out in accordance with the provisions of Article 4 of the Law No. 3402 published between Dec. 25/04/2008 and 26/05/2008, amended by Law No. 5304, at the location of the real estate subject to the lawsuit.
The court’s decision is contrary to the procedure and the law. Although the defendant showed the land registry as the basis, the court did not apply the basic land registry records. 101 island, 95, 96, 97, 98, 99, 100, 101 and there are parcels numbered 102, 1 parcel is covered with spruce-type trees and partially beech hornbeam trees, meadow pasture grasses, scrubby roses, scattered in places. It has been reported that spruce beech hornbeam, maple type, leafy and coniferous trees are covered as an opening, while parcels 103 and 104 on 101 islands are spruce type trees and scattered beech hornbeam, maple stunted trees are meadows. it is called openness, and it is called in the green area on the country map, and it is also called aerial photography.
As a result of the notification that there is vegetation on the real estate, a dispute has occurred and the conditions for zoning, reclamation and saving of the real estate have not been evaluated, as a result of the lawsuit filed by the Administration around the parcel number, it is understood that instead of sending the real estate to the land registry office for conclusion by the usual means, it has been decided to register by detection.
Judgments cannot be made based on expert reports that are not suitable for audit and incomplete research and examination.
For these reasons; circulation and sketches, if any, of all parcel minutes since the first formation of the main land registry dated 1289 and numbered 1, taken as a basis by the defendants, bringing the minutes of all parcels in which it was changed, asking why it was not changed, bringing all parcels to which the land registry applies, and the defendant bringing adjacent parcel minutes and pedestals, case files, registration sketch, if any, minutes and pedestals of neighboring parcels, showing the real estate subject to litigation and its surroundings, a photocopy of the original 1/5000 scale land registry cadastre map arranged by graphic or photogrammetry method for the first time in that place.
Examples of cadastral determination reports of light or close neighboring parcels and all land registry and tax records applied to these parcels from the first day of creation, the oldest dated hometown map of the region and related aerial photos, as well as stereoscopic aerial photos belonging to the years 1985-1990 and prepared on the basis of these photos. With the help of an expert committee consisting of an agricultural engineer, a map-cadastre (Geodesy and Photogrammetry) engineer or a science employee, and a graduate engineer or engineers graduated from the soil department of agricultural faculties, original colored country maps produced by the cadastre are requested from the places where the report and map are located.
After the application of the immovable property and its surroundings is made and the subject of the lawsuit is determined in these documents, aerial photos and maps are examined with a stereoscope and three-dimensionally to determine how the nature of the immovable property is seen in these documents, when zoning, restoration and ownership began. It should be determined that the cadastral map has been completed with these documents. the map, which is synchronized with the /5000 and 1/25000 scale cadastral map, shows the location of the disputed real estate by applying the finalized cadastral and aerial photos and original colored country maps on top of each other, including neighboring and near-neighboring real estate.
It contains detailed and scientific data taken from the expert committee, explains how the country looks on maps and what the vegetation is. 17/2 of flour. A report should be prepared by evaluating whether there is clarity of meaning in the law, the main land registry records and sketches, if any, the minutes of local experts and witnesses and neighboring parcels, and the procedure should be applied to the ground as required.
If it is subject to change through valuation, it should be considered that the area should be evaluated according to Article 20 /C of Law 3402 and its scope should be determined definitively, the scope of the actual real estate or, if not from the forest, the excess amount was obtained by digging a ditch from the forest located on the border. In addition, it should be investigated whether the land registry registration has lost its legal value within the scope of Law No. 4785.
If the real estate subject to the lawsuit is not covered by the title deed registration and is not among the previously listed places, when Deconstruction and revitalization was carried out, when it was started and completed, from whom it was made, when and how it was maintained and whether it meets its economic purpose, according to material events and in detail if it is determined at the beginning of the real estate. local experts should be listened to and witnesses should be taken from the parties, the accuracy of the words of local experts and witnesses should be investigated with the expert committee report, which will be arranged based on the above-mentioned documents and is in accordance with the truth.
If there are administrative investigation and criminal records issued by the authorities before or after the date of the case, these records should be applied instead of and the persons whose names are written in the record should be present as witnesses. The issue to be avoided is 14/1 of Law No. 3402. is the substance.
Considering that the measurement of the 40 and 100 decare limit written in the article should be made taking into account the provision of the second paragraph of the same article amended by the Law on Land Protection and Land Use dated 3/7/2005 and numbered 5403, the person or persons on whose behalf the registration decision will be made, other heirs and whether they are immovable property subject to eviction from the land registry in terms of wills, type, parcel numbers and amount in the same field of study, if any, by the Land Registry and relevant Cadastral Directorates and again by the same persons in terms of their heirs whether there is a case or not, The Registration Office of the Civil Court of First Instance should be asked separately.
If necessary, the detection report and land registry records or samples of registration case files should be brought and examined, it should be determined whether the real estate subject to the lawsuit is irrigated or dry agricultural land (Article 3/j of Law 5403 and Regulation 10 on the Restriction, Detection and Inspection of Immovable Property. the article should be changed). according to the provision of the second paragraph of article k, irrigated agricultural land: it is the growth period of cultivated plants.
A report in accordance with the purpose of the law should be obtained from the agricultural engineer and a decision should be made within the framework of the resulting result.
Regardless of the issues described, the establishment of a written judgment with incomplete examination is contrary to the procedure and the law.
Conclusion: For the reasons explained above, it was unanimously decided on 28.06.2016 to accept the appeal request of the defendant, the internal defendants …, …, … and … and to overturn the judgment and return the appeal fee upon request.