SUMMARY: It cannot be said that the request for cancellation of the land registry also includes the registration request. However, the fact that registration is not requested in the annulment case does not constitute a reason for the dismissal of the case. In this case, the work to be done should be to give the plaintiff the opportunity to file a registration lawsuit and in case a registration lawsuit is filed, both cases should be combined and a decision should be made.

1st Civil Chamber of the Court of Cassation

E.2019/4675 K.2020/83 T.08.01.2020

The main lawsuit is for the prevention of seizure and ecrimisil based on the right of ownership, and the consolidated lawsuit is for the cancellation of the title deed based on the legal grounds of incompetence and abuse of power of attorney.

In the main lawsuit, the plaintiff ..., claiming that he purchased the house numbered 3 in the immovable property numbered ... block ... parcel from the defendant ...'s brother ... on 16.01.2012, and that the defendant ... and the defendant ... have been living in this immovable property without any right, requested a judgment for the prevention of the seizure, the delivery of the immovable property as empty, and the collection of a total of 8.500 TL of ecrimisum from the defendants from January 2012 to 12. 07.07.2013, he requested a decision to collect a total of 8.500 TL, 500 TL per month, from the defendants together with legal interest.

In the main lawsuit, the defendants ... and ... defended the dismissal of the lawsuit by stating that the immovable property subject to the lawsuit was inherited from the father of the defendant ..., that they settled in the immovable property subject to the lawsuit on 25.11.2012 upon the call of ..., the brother of the defendant ..., and that the defendant ... did not receive inheritance shares from other immovable properties in return.

In the consolidated case, the plaintiff .... stated that his non-suiting brother .... fraudulently obtained a power of attorney from his mother ...., who was ill with .... ..., who was a patient of ..., fraudulently obtained a power of attorney from his mother ..., who was a patient of ..., and sold the real estate subject to the lawsuit ... block ... parcel numbered ... to the defendant ..., and upon this person's giving it to the contractor, three flats were purchased, he did not know to whom two of the flats were sold, but although he was told that the residence numbered 3 belonged to him, the defendant brother .... claiming that this immovable was sold to the other defendant/ plaintiff in the main case ... by the other defendant/ plaintiff in the main case ... and requested the cancellation of the title deed registrations of the immovable property numbered ... block ... parcel and the independent section numbered 3 formed with a condominium easement in this immovable property; and did not request registration.

In the consolidated case, the defendant ... defended the dismissal of the lawsuit by stating that he purchased the property subject to the lawsuit from the non-defendant ... and sold it to the defendant ... after a while, and that the defendant ... built a construction here, and that he was not aware of other issues; in the consolidated case, the defendant ... defended the dismissal of the lawsuit; in the consolidated case, the defendant in the consolidated case / the plaintiff in the main case ... defended the dismissal of the lawsuit; in the consolidated case, the defendant / plaintiff in the main case ... stated that he acquired the residence numbered 3 subject to the dispute on 16.01. 2012 in good faith and by paying the sale price, that he was a guarantor for the loans used by the defendant ..., the previous owner of record, and that he still pays the loan debts, that the defendant ... was residing on the date he purchased the immovable, that when the immovable was not evacuated despite the eviction undertaking, it was determined that the defendants ... and ... resided in the immovable when the evacuation was evacuated through the execution channel, that the aforementioned defendants resided in the immovable on 29. 03.03.2013, shortly before the lawsuit for prevention of seizure was filed, and defended the dismissal of the lawsuit.

The court decided to dismiss the combined title deed cancellation case based on the ownership dispute on the grounds that it could not be proved, and to accept the main lawsuit for prevention of seizure and ecrimisil on the grounds that it was established.

It should be noted immediately that the request for annulment of the title deed does not include the request for registration. In an annulment case, the fact that a request for registration is not made separately does not constitute a reason for the dismissal of the annulment case. In this case, the work to be done by the court consists of giving the plaintiff the opportunity to file a separate registration lawsuit, considering that the annulment request does not cover the registration, and if a lawsuit is filed, both cases should be combined and decided. In other words, accepting only the annulment lawsuit and deciding to cancel the title deed would result in a title deeded immovable to remain unregistered, which is incompatible with the general principle of the full map system adopted by the state to determine the legal and geometric status of all immovables and link them to the registry. However, if the plaintiff has only requested registration and not annulment, according to the settled and established practices of the Court of Cassation, there is no need for the plaintiff to also sue for the annulment of the title deed, considering that the request for registration includes the request for the annulment of the old record in the land registry. (YHGK Decision dated 11.11.1983, 981/8-80 Esas, 983/1162).

As such, in the consolidated lawsuit filed based on the legal grounds of incompetence and abuse of power of attorney, the plaintiff ... should be given a preliminary period to file a registration lawsuit, and if filed, this lawsuit should be consolidated with the case at hand and a judgment should be rendered accordingly, but it is not correct to render a decision as written without eliminating the aforementioned procedural deficiency.

It was unanimously decided on 08.01.2020 to accept the appeal objection of the defendant / plaintiff in the combined case ... in the aforementioned aspect and to VACATE the judgment in accordance with Article 428 of the Code of Civil Procedure No. 1086 (with reference to the provisional Article 3 of the Law No. 6100) for the reason explained, that it is not necessary to examine other appellate objections for the time being, and to return the advance fee to the appellant.