Appeal to the Judicial Board of the Supreme Court for civil cases by decision of the lower court
The Supreme Court of the Republic of Kazakhstan
the judicial board for civil cases
010000, Nur-Sultan,
Left Bank of the Ishim River, D. A. Kunaev Street, house 39.
From the defendant: ............................Dan
IIN:.....
Almaty, Karagaily district,
M.. T.. the street ....House, 2 apartments
8 708 ....
attorney: Galymzhan Sarzhanov
Legal office" law and law"
IIN 201240021767.
Republic of Kazakhstan, 050002, Almaty,
Almaly district, abylai Khana Ave., 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.
Claim
To the decision of the Nauryzbay District Court of Almaty dated August 08, 2024 and the meeting of the judicial board for civil cases of the Almaty city court dated November 18, 2024
March 27, 2024 .............. K. A. (hereinafter referred to as the Civil Plaintiff) filed a claim with the Nauryzbay District Court for civil cases, where the plaintiff is a citizen .............. A. K. (hereinafter referred to as the civil defendant), requested the satisfaction of the claim on the elimination of obstacles by demolishing an independently built structure.
On August 08, 2024, the presiding judge of the Nauryzbay District Court of Almaty, a.m. Medetova, reviewed the civil case of the plaintiff to the Defendant No. 7585-24-00-2/581 on the claim for the elimination of obstacles by demolishing an independently built structure, guided by articles 223-226 of the Civil Procedure Code of the Republic of Kazakhstan, the court decided: the plaintiff's claim - satisfied. Owner of 2 apartments in Almaty, Nauryzbay district, Karagaily microdistrict, Makash Tatimova Street, house 79 ............................the decision was made to eliminate obstacles and prevent the defendant from entering and leaving the premises of the plaintiff with his family by demolishing an independently built structure and fence located on the land plot.
The defendant, in disagreement with the decision of the presiding judge of the Nauryzbay District Court of Almaty a.m. Medetova dated August 08, 2024, sent an appeal to the Appeal Court board in civil cases of Almaty.
November 18, 2024 the board of the Almaty city court for civil cases under the chairmanship of S. S. Abdigalimov, as part of judges zh.a. Akhanova and K. E. Kalekeeva, plaintiff K. A. M., His representative Z. Baitenova, defendant A. K...............at an open court session with the participation of his representative G. T. Sarzhanov, the plaintiff in the electronic case Kulsunkan Abdubaytovna M........... defendant ............................sa considered the civil case No. 7599-24-00-2A/10775, filed with the appeal of the defendant to the decision of the Nauryzbay District Court of Almaty dated August 08, 2024, issued on the claim for the elimination of obstacles by demolishing an independently built structure and fence, the decision of the plaintiff's family to prevent the defendant from entering and leaving the premises of the plaintiff No. 7599-24-00-2A / 10775, filed with the appeal of the defendant, and decided: leave the decision of the Nauryzbay District Court of Almaty dated August 08, 2024 unchanged, the defendant A. K...............it was decided that the appeal should be dismissed.
We consider the decision and decision issued by the court of first and second instance to be illegal and unreasonable 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 in the documents establishing the right of ownership of the defendant, obviously the government for Citizens State Corporation, according to the definition of private property rights are specified as private. 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. Proof of this is that the plaintiff has a very good chance of getting on the highway with the road behind the house, and today the plaintiff uses the same road.
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.
During a separate court session, the plaintiff independently made a way out of the house by demolishing the defendant's barn. However, in view of this, instead of dismissing the claim, the court allows an illegal Court decision.
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, since in fact it is stated that the total area of the cadastral land plot No. 20-322-029-056 belonging to the defendant is 0.0110 hectares.
If we look at the defendant's Land Management Project listed below, it says that the area of the land plot is located on an area of 0.0110 hectares and the land plot is fenced, there are no restrictions and easements for the land plot. All neighbors agreed and signed an agreement on the fencing of the land plot. Among those who gave consent is the plaintiff himself.
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.
The construction of the building was carried out by the defendant at the time of the purchase of the house and was legally approved. According to the results of inspections by all competent authorities, the defendant was not allowed to commit any offenses on the land plot and the above-mentioned construction facilities 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.
The court in the motivational part of its decision "defendant .............. A. K. illegally built Foundation 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, which belongs to 1.2 apartments, so he considers the plaintiff's claim to be legal," he writes ....
However, it is impossible to agree with the arguments of this court, because if you carefully look 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 of 28.12.2024, as a result of the inspection of the plaintiff's land plot and premises, 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 facility located at the address: Almaty, Nauryzbay district, Karagaily district, M. Tatimova str., 79, sq. 2 for compliance with the requirements in the field of architectural, urban planning and construction activities on the land plot residential building (letter A1), residential annex (letter A1), roof (letter).
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 laid 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.
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 (.............. A. K.), area 0.0110 ha;
- 03-047-425-369 (K. A. M.), area 0.0560 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, because the land plot with Cadastral number 03-047-425-227 has a share of 0.0250 ha (.............. A. K.) is defined as an independent plot and identified as Cadastral number 20-322-029-711.
The appellate court considers it unreasonable to dismiss the defendant's appeal, saying that the arguments of the plaintiff, the defendant, that the passage through the land plot is allocated by the state and that he has the full right to use this road are erroneous.
The defendant's ownership of the land plot is registered with the authorized body as an independent land plot with its area, which is confirmed by the conclusion of a specialist and the submitted case documents.
In accordance with Article 53 of Part 5 of the Land Code of the Republic of Kazakhstan, the procedure for using a land plot in common ownership (common land use) is established by a contract between participants in common ownership (common land use). In case of failure to reach an agreement between them, the procedure for use is determined by the court. The agreement of the participants or the decision of the court on the procedure for using the land plot is subject to state registration in accordance with the procedure established by the legislation of the Republic of Kazakhstan. In addition, the judicial board, leaving the decision of the court of First Instance unchanged, explained to the parties the conclusion of a written agreement on a private easement in accordance with Article 69 of the Land Code – however, the plaintiff states that “the right to limited use of a neighboring or other land plot specified in Sections 2, 3 of Article 69 of the Land Code of the Republic of Kazakhstan (private easement), a private easement for a neighboring or other land plot is established by a contract concluded with subjects of private ownership or land use rights to these plots (agreement on establishing a private easement) or by a court decision” – "I don't know," he said.
At the same time, the subject of the right of limited use of a land plot (private easement) must compensate the private owner or land user for all losses related to the easement in the amount determined by the agreement or court decision on the establishment of a private easement.
In accordance with the requirements of this article, there was no proposal on the part of the plaintiff to enter into a private easement agreement, in addition, the defendant's proposals to enter into a private easement agreement are rejected without consideration.
If we take into account the arguments submitted to the court from the defendant, as mentioned above, the decision of the Nauryzbay District Court of Almaty dated August 08, 2024 and the decision of the judicial board for civil cases of the Almaty city court dated November 18, 2024 are illegal and unjustified.
In accordance with articles 434 and 436 of the Civil Code of the Republic of Kazakhstan, judicial acts that have entered into legal force by local and other courts may be reviewed by the Supreme Court of the Republic of Kazakhstan in Cassation, subject to compliance with the appeal procedure for appealing them, as well as judicial acts of the specialized judicial collegium of the Supreme Court of the Republic of Kazakhstan.
In accordance with Article 8 of the APC of the Republic of Kazakhstan, everyone has the right to apply to the court in accordance with the procedure established by this code for the protection of violated or disputed rights, freedoms or legitimate interests.
Justice in civil cases under Article 12 of the Civil Code of the Republic of Kazakhstan is carried out on the basis of equality of all persons before the law and the court.
In accordance with Section 2 of Article 610 of the tax and other mandatory payments to the budget of the Republic of Kazakhstan (tax code), and in accordance with appeals for the Cassation review of judicial acts, the state duty is charged for the subject of referral in the amount of 50 percent of the corresponding rate of the state duty established by paragraph 1 of this article.
Taking into account the above-mentioned circumstances and in accordance with articles 434, 436, 441 of the Civil Code of the Republic of Kazakhstan,
The Cassation board:
· Please submit this Cassation petition for consideration at the court session of the Cassation instance of the Supreme Court of the Republic of Kazakhstan;
* The decision of the Nauryzbay District Court of Almaty dated August 08, 2024 and the decision of the judicial board for civil cases of the Almaty city court dated November 18, 2024 are declared illegal and we ask for its violation;
* We ask you to satisfy the cassation appeal of the plaintiff and accept a new court order.
· We ask the plaintiff to recover 300,000 tenge paid for the assistance of a lawyer in favor of the defendant.
With all due respect,
Defendant: A. K...............
Lawyer: G. T. Sarzhanov.
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