"I give the parties' consent the force of a judgment.
As a result of the aforesaid, I determine as follows:
The building rights in the plot that is the subject of the claim will be divided equally between the two parties, 50% to the plaintiffs and 50% to the defendants, as if the entire lot were empty.
The defendants will return to the plaintiffs 34 square meters that are currently in their possession. The defendants will be able to choose the location of the 34 square meters to be returned"
- The dispute regarding the return of the 34 square meters of land that was stolen by the defendant and her late husband
As stated, the exact location of those 34 square meters that will be transferred and returned to the plaintiffs has not been determined. Moreover, it was also not determined that there would be a contiguity between the plaintiffs' land and the area to be returned to them, that is, it was not determined that the area that would sit would be adjacent to the actual border between the plaintiffs' share and the defendant's share. The defendant took advantage of the fact that the judgment did not stipulate that the area it would return would be adjacent to the plaintiffs' land - and thus, decided to return to the plaintiffs an area that was far from their share in a way that could not be accessed. Hence the lawsuit here.
- For summary, it should be said that the defendant is an elderly woman in her late ninth decade, who has several children, all of whom are also adults. As will be expanded below, it appears that the defendant herself and at least three of her adult children support the plaintiffs' version and do not dispute that the plaintiffs should be transferred an area bordering their share of the lot. On the other hand, it seems that one of the older sons, who still lives with his mother, contributed to some extent to the dispute here. All of these will be expanded on below.
- The remedies claimed
The plaintiffs petition for the following remedies:
- Declaratory judgment stating that the defendant breached and is in breach of the agreement entered into between the parties, which was given effect by a judgment on December 29, 2020.
- A declaratory judgment stating that the defendant is acting in bad faith in fulfilling its contractual obligations.
- A remedy that determines that the right to choose the location of the area that is occupied by the plaintiffs has been transferred to the plaintiffs. The right was transferred because the defendant refrained from determining the location of the area in which the plaintiffs would be in possession.
- Appointing the plaintiffs' counsel as receiver or appointing another receiver to execute the judgment and authorizing him to act in accordance with the court's instructions in order to carry out all the actions required by the judgment, including the transfer of 34 square meters from the defendant's possession to the possession of plaintiffs 2 and 3.
- A determination that the defendant contempted the court's ruling, and enforcement of the execution of the judgment in a manner that will prevent the defendant from thwarting the receiver's work or making it difficult to carry it out.
- Granting a permit to split the remedies in such a way that the plaintiffs can file a claim for their full financial damages when they are fully consolidated.
- The question that must be decided, in accordance with the District Court's decision in an appeal against a previous judgment in the proceeding
- In the framework of the proceeding here, the question must be discussed and decided - "whether the agreement that received the force of a judgment was indeed violated, with regard, inter alia, to the obligation to maintain agreements in good faith". All in accordance with the District Court's directive, as will be presented in the next paragraph. For the purpose of the matter - it will be necessary to address the fact that the defendant agreed and it was even determined that it would transfer to the plaintiffs an area of 34 square meters that was taken and in fact stolen from their share of the lot. It will also be necessary to examine whether when the defendant chose to allocate to the plaintiffs a remote area that was detached from their share, was it conduct in good faith? Did the defendant violate the provisions of the agreement between the parties, and hence the provisions of the judgment?
- As mentioned above, a judgment has already been issued in the proceeding that erases the claim and dismisses it out of hand. The plaintiffs appealed the judgment in the framework of a civil appeal 1191-09-22 Golani et al. Kehati (July 17, 2023, Deputy Judge Y. Shevach, Judge Y. Etdegi, Judge S. Yakubovich). The appeal was accepted anddetermined as follows (emphases not in the original):
"In our case, the cause of action filed by the appellants was a breach of the settlement agreement that received the force of a judgment, and a petition for enforcement and payment of compensation. There was no reason to order its deletion in limine, especially when there was no dispute that the piece of land proposed by the respondent was on the other side of the boundary of its plot with the appellants' plot.