Decision Date: 27.06.2016
CREDIT CASE – FAILURE TO DISCUSS WHETHER THE PLAINTIFF, WHO DOES NOT OBJECT TO THE VALUATION REPORT, CAN CLAIM THIS PRICE IN THIS CASE – THE PROVISION IS BROKEN
Abstract: whether the irrigation well costs that were not taken into account during the valuation made in the sales file by the court also increased the value of the real estate, and whether the plaintiff who did not object to the valuation report determined in this way could claim this price in this case was not justified.
(4721 P. K. m. 684)
Case and decision: after the decision to accept the appeal petition, the papers in the file were read and considered necessary after the decision was made to accept the appeal petition.:
The plaintiff’s attorney with the petition, the sides of each stakeholder partnership that is 1/3 of the immovable that were sold as a result of the elimination of the case, the claimant for the needs of real walnut, pear, Tangerine, plum, fig, quince, pomegranate, apricot, olive, Vine, Mulberry, poplar tree, staring up at the raised water wells opened to lay pipe, and placed a submersible pump and motor, home, pet and drop the premises made mandatory costs 60.000.00 useful.- Claiming that it is worth TL; that the value of the real estate sold as a result of the settlement of the partnership is paid equally, that the defendants are enriched for no reason; he requested and sued the defendants to decide on the collection with legal interest that he would receive 20.000.00 TL, reserving his rights to the surplus.
The defendant … his attorney has asked for the dismissal of the case with a petition of reply.
The defendant … stated in his statement received during the discovery that the plaintiff planted fruit trees, raised them, built animal dams, drilled a well, and the house was built by his uncle.
The court decided to partially accept the case, 9.163,36 TL with legal interest to be processed from 27/09/2011, which is the date of the case, to be given to the plaintiff by taking from the defendant…, to be given to the plaintiff by taking 9.163, 36 TL with legal interest to be processed from 27/09/2011, which is the date of the case, to be rejected by the defendant; the provision was appealed by the defendant’s attorney and the defendant during its time.
The case relates to the request for collection of useful and mandatory expenses allegedly incurred by the plaintiff from other stakeholders in accordance with the gratuitous enrichment rule. The issue of the appeal is whether the defendants have prospered against the plaintiff for no reason.
From the information and documents in the file; in relation to the real estate subject to the lawsuit …’s … and …’a lawsuit for the elimination of the partnership, the court decided to eliminate the partnership on the real estate through the sale, the total value of land, trees, abode, roof in the valuation report in the real estate sale file 77.125.00. It is determined that it is TL, this figure is written as the estimated price in the auction announcement, the real estate is auctioned by 116.500.00.- It is understood that it was sold to a non-litigation …on 30/01/2011 with a price of TL, the plaintiff filed the case for unprovoked enrichment on 27/09/2011.
An additional report prepared by an expert agricultural engineer who participated in the discovery was made by the court; the value of trees is 7.050.00.- TL, 15.000.00 of the costs for the irrigation well.- TL, 1.190.10 of expenses for trees.-It determined that it was TL, the defendant’s attorney objected to the additional report, and the court stated that the value of animal dam in the sales file was determined as TL 4,250.00 in the justification of the decision,this value was based on it, the plaintiff contributed a total of TL 27,490. 10 to this move (the sum of the value specified in the additional report and the value of animal dam). This figure was divided into three, one third of which was left on the plaintiff, and the remainder was decided to be paid by the defendants.
According to the rules of unprovoked enrichment, the moment of impoverishment and enrichment must occur in order to claim receivables. Unprovoked enrichment occurs on the date when the sale is made and the sale price is paid through the elimination of the partnership. As a rule, the plaintiff may ask the defendants for the amount of this increased value that falls on the defendants ‘ shares in accordance with the rules of enrichment for no reason, if there has been an increase in the sale price of the real estate due to the magnificent and useful expenses he has incurred on the real estate.
In a concrete case, the subject of the lawsuit is immovable, sold to a person who is not in the case with the contents on it, the sale money is equal to the plaintiff and defendants (35.853.01.’er TL) distributed. Now the plaintiff may ask the defendants, who are other stakeholders, for the costs of the relocation in accordance with the provisions of gratuitous enrichment.
According to the plaintiff, he wants to collect the unfair earnings of the defendants due to the beneficial costs he incurred in the relocation; walkthrough on the basis of unjust enrichment by the court are as follows: expert an expert witness by the plaintiff of costs through the beneficial separate cases have been made and made on the day of auction have been made under the same conditions and for the immovable sold should be determined that may be obtained from the value of the actual version, the values obtained in this way, when a difference occurs between these with reference to each other, this rate is made by tender, the selling price by applying the procurement cost of the expenses of the plaintiff to the amount of reflection should be determined, from this amount to be found, the amount that falls on the defendants ‘ share should be decided. If it is understood that there is no difference between the costs that have been made and the values that have not been made, the case should be dismissed on the grounds that the costs do not affect the sale price, so the defendants do not have a reason to enrich themselves because of these costs.
In addition, it is understood that the value of the land, trees, House and roof is calculated in the valuation report contained in the sale file of the real estate subject to the lawsuit, the total value found is written as the estimated price in the auction announcement, and the irrigation well costs are not mentioned in this report. It was not clear whether the irrigation well costs, which were not taken into account during the valuation made in the sales file by the court, also increased the value of the real estate, and whether the plaintiff, who did not object to the valuation report determined in this way, could claim this price in this case.
Conclusion: without regard to the principles described above, the provision in writing is not accurate, and since appeals are in place for these reasons, the provision is HUMK with acceptance.nun 428.in accordance with the article, it was decided unanimously on 27.06.2016 to overturn and return the appeal fee received in advance to the appellant upon request.