Part Two - The Witnesses Heard in the Proceeding and the Summary of the Parties' Arguments
- Witnesses Heard in the Proceeding
As part of the proceeding, five witnesses were heard, as detailed below:
- The two plaintiffs' witnesses - on behalf of the plaintiffs, plaintiffs 1 and 2 were heard.
- The defendant's three witnesses were heard on behalf of the defendant herself; two of her sons were also heard - H.H. Elad Kehati and Avraham Kehati.
- The plaintiffs' arguments
- The plaintiffs are rights holders in half of a lot in the city of Tel Aviv. Initially, the rights belonged to plaintiff 1 and his wife, as well as to his mother, Mrs. Gerstel Golani Bruria. Gerstel Golani Bruria's rights were purchased by plaintiffs 2 and 3 on August 1, 2021, i.e., after the date of the judgment inCivil Case 49046-03-20, which was given on December 29, 2020. As part of the sale agreements, all of Ms. Gerstel Golani's rights were assigned to plaintiffs 2 and 3 by virtue of the judgment inCivil Case 49046-03-20.
- The defendant and her husband Kehati Shimon z"l were the owners of the rights in the second half of the lot. Since the death of her late husband, the defendant has exclusively owned half of the plot that belongs to her.
- In March 2020, plaintiff 1, together with his mother and wife, filed a lawsuit against the defendant and her late husband Shimon Kehati z"l, while Mr. Kehati was sued through his son Avshalom Kehati and Mrs. Irit Intertor, who were appointed as legal guardians for him. In the statement of claim, they petitioned for various remedies and claimed that the defendant and her husband illegally hold land belonging to the plaintiffs there.
- On December 29, 2020, a hearing was held, during which the court proposed a compromise proposal that received the force of a judgment, and in this regard, see section 1.2(e) above.
- From the date of the judgment, plaintiff 1 approached the defendant demanding that the judgment be upheld. From conversations and correspondence with the defendant's children, it became clear that the family had held discussions regarding the land that would be returned to the plaintiffs, but in practice the judgment was not implemented.
- After it became clear to plaintiff No. 2 that the defendant did not intend to uphold the judgment or, to the extent that it was forced to uphold it, to transfer rights to the plaintiffs in a non-functional location that was detached from the plaintiffs' plot, the plaintiffs sent a warning letter. On December 6, 2021, the defendant's son, Avshalom Kehati, replied on his behalf and on behalf of his sisters Irit Intertur and Naomi Kehati Bronner, that they understood that the area should have been returned adjacent to plaintiff 1's plot and that they were interested in upholding the judgment. The answer corresponds, in practice, to the plaintiffs' demand in the proceeding here.
- In practice, until the date of filing the statement of claim, the defendant refrained from executing the judgment. In light of the above, the plaintiffs petition for enforcement of the judgment. According to them, the defendant thwarts the judgment and her conduct amounts to contempt of the judgment. The defendant is acting in bad faith. They further claim that in accordance with section 51 of the Contracts (General Part) Law, 5733-1973 (hereinafter: "the Contracts Law") and since the defendant did not fulfill its obligation within a reasonable time, the plaintiffs are entitled to choose the location of the area that is in their possession. The plaintiffs also request that the court appoint a receiver to carry out the judgment.
- The defendant's arguments
- According to the defendant, the claim should be dismissed out of hand. This is an attempt to recycle a previous lawsuit that ended in a judgment and to make some improvements. The plaintiffs are trying to create a false representation that the defendant is not upholding the judgment, while the plaintiffs are the ones who refuse to uphold it in accordance with its terms. In the judgment, the defendant was granted the right to choose the location of the reclaimed area on the eastern side of the plot.
- The defendant further added that the lawsuit is an attempt to carry out a procedural hijacking. The lawsuit is without cause, the judgment became final and was executed in accordance with its terms. The defendant further claims that there is no rivalry because Ms. Bruria Gerstel Golani was not added as a plaintiff in the case, even though she is a necessary litigant and the settlement agreement was made with her. In addition, she claims that there is no rivalry with plaintiff 3 since he purchased sub-plot 2, which does not border the defendant's property at all. No correct parties were added - the wife of plaintiff No. 2. Also, Mrs. Anat Golani, even though she is part of the sellers of sub-plot 2. Plaintiff 1 did not attach a power of attorney and beyond that he cannot represent his mother and wife in the proceeding. I will already note that claims of lack of rivalry were reduced in the defendant's summaries and amounted to the absence of rivalry on the part of defendant 2. These arguments were not made in the statement of defense.
- The judgment given in the settlement granted the defendant the right to choose the location of the returned area. Although the defendant did not know and did not give her consent to the settlement that was made, the defendant upheld the judgment and in accordance with her right under the judgment, the defendant, which owns 75% of the land, chose the location of the returned area. Plaintiff 1, who was not satisfied with the outcome of the judgment that gave the defendant the right to vote, filed this claim after he had already sold his house to plaintiffs 2 and 3, in the hope that the judgment could be circumvented.
- The plaintiffs have no right to decide where the location of the returned area will be. This right is given only to the defendant and it has exercised its right. The plaintiffs chose not to receive the area at the location chosen by the defendant. The lawsuit was filed about a year after the judgment was rendered and delayed. According to the defendant, this delay indicates a waiver.
- The defendant added that the plaintiffs are taking the law into their own hands and are trying to overturn the provisions of the judgment so that they will choose the location of the area that will be returned to them. According to the defendant, the court lacks jurisdiction because it is in fact an appeal against the judgment and the date of the appeal in this matter has passed.
- The defendant noted that her children are not authorized to determine where the land will be returned, since with the death of their father, the guardianship rights granted to them, including the right to decide for him, expired. Upon his death, the proprietary rights passed to the defendant and it was she who decided on the location of the area to be returned.
- Finally, the defendant argues that the area chosen by it is not detached. It is accessed from an access path adjacent to the property and there is no problem that it will be used by the plaintiffs.
The above does not present the full arguments of the parties, but it is sufficient to lay the foundation for the continuation of this decision.