Appeal to the board of Appeal Court in civil cases of Almaty
For civil cases of the city of Almaty
The court of Appeal
Almaty, 050000 Kazybek bi STR., 66.
0201@sud.kz
From The Defendant: A. K. O.
IIN:. ...........
Almaty, Sh / a,
79 M. T. Street, Apartment 2
8 708 .
attorney lawyer Sarzhanov Galymzhan Turlybekovich
Legal office" law and law"
IIN 201240021767.
Republic of Kazakhstan, 050002, Almaty, Almaly
district, abylai Khana Avenue, house 79/71, office 304.
e-mail: info@zakonpravo.kz website: www.zakonpravo.kz
Tel.: +7 708 578 57 58 / 8 727 978 57 55.
Appeal
To the decision of the Nauryzbay District Court of Almaty dated August 08, 2024
On August 08, 2024, the presiding judge of the Nauryzbay District Court of Almaty, Medetova A.M., plaintiff M. K. A. (Hereinafter referred to as the civil plaintiff), defendant O. A. K. (Hereinafter referred to as the civil defendant), upon the statement of claim for removing obstacles by demolishing unauthorized building No. 7585-24-00-2/ 581, having considered the civil case, guided by Articles 223-226 of the Civil Procedure Code of the Republic of Kazakhstan the court ruled: the plaintiff's claim is satisfied. Almaty, Nauryzbay district, Karagaily microdistrict, M. T. Street, house 79, owner of 2 apartments A. K. ospanova made a decision to eliminate obstacles and prevent the defendant from entering and leaving the plaintiff's family's premises by demolishing an independently built structure and fence located on the land plot.
We believe that the decision of the court of first instance is illegal and unjustified on the following grounds:
The court stated in its decision that the defendant was recognized as the owner in accordance with the contract for the purchase of a house with a land plot dated January 31, 2013. In this agreement, the land plot is not specified as a common share. In the aforementioned house, the defendant indicated that he was living with his family....
However, we believe that the court did not take into account the following circumstances. At the same time, the documents of the defendant's Land Management Project (Zemleustroitelny project), the state act on the right of private property, the technical passport do not contain information that states a common share, but rather the defendant's right to private property is recognized as private.
At the same time, the court in its decision considers that since the plaintiff's apartment is located at the end of the courtyard, the exit to the street passes through the courtyard belonging to 1.2 apartments, which was proved during the field court session on 13.10.2023 ...
We cannot agree with the arguments of this court, since the plaintiff's apartment is located at the end of the courtyard, the exit to the street previously crossed the courtyard belonging to 1.2 apartments. We believe that the arguments that there is no other way out to the street are unfounded, since there is another way through the land plots belonging to apartments 1 and 2. The proof is that the plaintiff has a very good chance of getting out on the road behind the House.
13.10.2023 at 11 o'clock we attended a field court session, during the field court session, we clearly saw that the plaintiff, in addition to the defendant's land plot, has an additional exit road, where the plaintiff can go to the paved road with the back of his house, not along the ravine.
To be clear, the path of the plaintiff from behind his house will be 1.5-2 meters wide, between the plaintiff's House and the neighboring Daniyar's barn. The neighbor Daniyar, who was asked as a witness at the offline court session, which took place on 17.10.2023 at 15:30 PM, confirmed our arguments in which the witness Denmark brought to the court that the distance between the plaintiff and his stable was 1.5-2 meters.
In addition, during the court session, the plaintiff independently made a way out of the house by breaking the defendant's barn, which was investigated in a comprehensive manner at the court session, however, the court allows an illegal Court decision without taking into account this situation.
As a result of the above grounds, it can be established that the defendant's private land use rights are violated on the part of the plaintiff.
In its decision, the court ruled that during the inspection of the object located at the address: Almaty, Nauryzbay district, Karagaily district, M. Tatimov STR., House 79, Apartment 2, the subject of compliance with the requirements in the field of architectural, urban planning and construction activities is a residential building on a land plot (literch.A.), construction of a residential building (litera1), construction of a roof (Litera).…….
However, we cannot categorically agree with this argument of the court.in fact, the total area of the cadastral land plot No. 20-322-029-056 belonging to the defendant is specified as 0.0110 hectares. At the same time, the cadastral value of the real estate object on the territory of the specified land №20:322:029:056:1:2 according to the technical passport of buildings and structures, the following construction facilities were built on the territory of a land plot of 0.0110 hectares on 109.9 square meters:
- Individual residential / individual residential house 49.6 sq. m.;
- Residential building / residential Wharf 22.0 sq. m.;
- Cold seal / cold storage box 4.9 square meters;
- Asylma / Naves 33.4 square meters.
According to the results of inspections by all competent authorities, the defendant said that no offenses were committed on the land plot and the above-mentioned construction facilities built and met all technical requirements.
In accordance with Part 3 of Article 188 of the Civil Code of the Republic of Kazakhstan, the owner has the right to take any actions in relation to the property belonging to him at his own discretion, to own, use and otherwise dispose of the property.
In the motivational part of its decision, the court stated that "Defendant Ospanova A. K. illegally built foundations and fenced yard condominium land without any documents without a decision of the competent authorities and without registration with the registration authorities in accordance with the procedure established by a special law. That is, the plaintiff passes through the courtyard belonging to 1.2 apartments to get out into the street, so he considers the plaintiff's claim legitimate."...
However, it is not possible to agree with the arguments of this court, since if you look closely at the documents attached to the materials of the civil case, you can see that according to the results of inspections by all competent authorities, the defendant side was not allowed any offenses on the above-mentioned construction objects built on the land plot and meets all technical requirements.
In addition, all the neighbors ' land plots were independently fenced, and none of them asked permission from each other during the siege.
As evidence of this, according to the Act No. 1288 of the inspection conducted by the competent authority on 28.12.2024, as a result of the inspection of the plaintiff's land plot and the house, a number of violations were revealed, and according to the results of the inspection, the owner was issued an Order No. 122/131 (presumption) dated 22.02.2024.
According to Article 15 of the Constitution of the Republic of Kazakhstan, everyone has the right to protect their rights and freedoms by all means that do not contradict the law.
According to Article 8 of the Civil Procedure Code of the Republic of Kazakhstan, everyone has the right to apply to the court in accordance with the procedure established by this code to protect their violated or disputed rights, freedoms or legitimate interests.
During the inspection of the object located at the address: Almaty, Nauryzbay district, Karagaily district, M. Tatimov STR., House 79, Apartment 2, the subject of compliance with the requirements in the field of architectural, urban planning and construction activities is a residential building on a land plot (literch.A.), residential adjoining construction (literch.A1), it was established that the roof (liter) was erected.
Also, during the inspection of the facility with the KSE of the Department of urban planning control of Almaty, it was found that a foundation measuring 5.5 m x 6.6 M was built on the above - mentioned land plot under the existing roof with a basement device measuring 2.7 m x 3.0 m and a height of 1.73 m.
In accordance with subparagraph 2 of Paragraph 2 of Article 60 of the law" on architectural, urban planning and construction activities in the Republic of Kazakhstan"(hereinafter referred to as the law)"in coordination with local executive bodies of cities of Republican significance, the capital, districts (cities of regional significance), the customer (owner) can carry out the construction of household structures by sketches (sketch projects) without design (design and estimate) documentation: on the territory of private household plots, as well as on the plots of horticultural and horticultural partnerships (societies)". "it is said that the foundation under the roof does not need to be repaired or documented.
In accordance with Article 15 of the Civil Procedure Code of the Republic of Kazakhstan, the parties independently choose their position, methods and means of its protection and independently of the court and other persons participating in the case.
vkhd.zht-2024-04470942 24.06.2024 zh.
NJSC " state corporation "government for citizens" branch in Almaty-2024-04470942 2024 according to the message of June 24 of the year, according to the data of the technical archive, the total area of the land plot (0.1390 ha), previously Cadastral number 20-322-029-056, was determined taking into account the Joint Regional acts included in the limits of the city of Almaty in accordance with the decree of the president of the Republic of Kazakhstan dated April 16, 2014 No. 798 "on changing the boundaries of the city of Almaty" :
- 03-047-425-1072 (O. A. K.), area 0.0110 ha;
- 03-047-425-369 (K. A. M.), area 0.0560 ha;
- 03-047-425-227 (O. A. K.), area 0.0250 ha;
- 03-047-426-085 (H. S. A.), area 0.0300 ha;
Currently, the total area of the land plot with Cadastral number 20-322-029-056 is 0.1140 ha, since the land plot with Cadastral number 03-047-425-227 is defined as an independent plot with a share of 0.0250 ha (O. A. K.) and is identified as Cadastral number 20-322-029-711.
Taking into account the arguments submitted to the court from the above-mentioned defendant tarp, there is every reason to consider the decision of the Nauryzbay District Court of Almaty dated August 08, 2024 to be illegal and unreasonable.
In accordance with Article 8 of the code of criminal procedure, each person has the right to apply to the court for the protection of violated or disputed constitutional rights, freedoms or protected interests.
In accordance with Article 15 of the Civil Procedure Code of the Republic of Kazakhstan, the parties independently and regardless of the court, other bodies and persons elect their position, methods and means of its protection in the course of civil proceedings.
In accordance with articles 401, 402, 403, 404 of the Civil Code of the Republic of Kazakhstan, it is provided that an appeal may be filed against court decisions that have not entered into legal force. The right to appeal a court decision belongs to the parties, other persons participating in the case and is considered by the board of the appeal court for civil cases of the regional and equivalent Court in the collegium of at least three judges of the collegium. An appeal is filed through the court that issued the decision. An appeal may be filed in the final form within a month from the date of the decision, and from the date of sending them a copy of the decision by persons who did not participate in the trial.
Based on the above and guided by articles 401, 402, 403, 404 of the Civil Code of the Republic of Kazakhstan,
We ask the court:
* The Nauryzbay District Court of Almaty dated August 08, 2024
The defendant's appeal against the decision is satisfied;
* Cancellation of the decision of the nauryzbay District Court of Almaty dated August 08, 2024;
* Civil plaintiff M. K. A. to leave the statement of claim completely – without satisfaction;
· From the plaintiff, 300,000 tenge paid for the assistance of a lawyer in favor of the defendant – to recover.
With respect,
Defendant: A. K. O..
Lawyer: G. T. Sarzhanov.
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