Civil Case (Nazareth) 4555-06-22 Ahmad Zoabi v. Yousef Zoabi

Judgment

1. I have before me a claim for the removal of the defendant from land in Kfar Metzer known as part of Plot 13 in Block 22515 (hereinafter: "Plot 13"), which he allegedly invaded unlawfully.

Factual Background

1. The plaintiff's father, the late Muhammad Zoabi, was the owner of the rights in part of Plot 13, based on an exchange agreement signed on August 31,1973 between him and the Israel Land Authority.  As part of this agreement, the plaintiff's father was granted rights to an area of 340 square meters out of the total area of Plot 13, a total area of 20,634 square meters, and he was allocated a specific plot in the form of a triangle.
2. In accordance with the inheritance order dated June 17,2021, a copy of which was attached to the statement of claim and the plaintiff's main witness affidavit, the plaintiff is one of the heirs of his late father Muhammad and his share in the estate is 1/16.
3. Only in February 2025, the plaintiff was registered as the owner of 63.74 square meters of the ownership rights in Plot 13.
4. The defendant, Yusef Hassan Zoabi, is a resident of Kfar Metzer, a neighbor of the plaintiff who is registered as the owner of some of the ownership rights in Plot 12 in Block 22515.
5. According to the plaintiff, the defendant invaded the area of plot 13 belonging to him and shortly before the lawsuit was filed, he built a fence while associating the property with himself.
6. There is no dispute that the defendant has no rights in Plot 13, as is even evident from the wording of the land registry that appears in the expert opinion of Marwan Zibak, who was appointed on behalf of the Plaintiff's House.
7. As stated above, in the case, surveyor Marwan Zibak was appointed as an expert on behalf of the court, who was asked for his opinion on the question of whether the defendant had indeed invaded the area of Plot 13.
8. In his opinion, the expert Zibak determined that the defendant held an area of 15 square meters out of the area of Plot 13, in the form of a triangle from the lot that was allocated to the plaintiff's late father in accordance with the exchange agreement with the Administration (hereinafter: the "Invasion Area").

The parties' arguments in summary

1. As stated, the plaintiff claims that the defendant trespassed his boundaries and that he is making use of the plaintiff's land without a permit and unlawfully, and therefore he petitions to remove his hand from the land while demolishing the connections.
2. On the other hand, the defendant argues a number of defense arguments:

1. Lack of standing on the part of the plaintiff - According to the defendant, at the time the claim was filed, the plaintiff was not the registered owner of the land, and therefore he did not have the right to file the claim and it should be dismissed.
2. Agreed-upon division - The defendant claimed that he had been holding the disputed area for decades by virtue of an agreed partition plan. According to him, the existing fence is a historical fence that he has only "restored".  For this reason, the defendant argues that there is no reason to view it as trespassing.

• Judicial estoppel - According to the defendant, the plaintiff submitted an application for a building permit to the local planning and building committee, in which he himself drew the boundaries of his plot in a manner that did not include the area in dispute. According to the defendant, this action silences the plaintiff from claiming ownership of this part of the land in a later legal proceeding, while contradicting his statement to the committee.

The Ottoman Settlement [Old Version] 1916

1. 12-34-56-78 Chekhov v. State of Israel, P.D.  51 (2)Previous Judgment - The defendant claims that in the framework of a judgment given in 2001, it was determined that the defendant was entitled to an additional area of 19 square meters from the plaintiff and his family.  This area, the defendant claimed, is the area in dispute.
2. Balance of convenience - The defendant argued that the balance of convenience necessitates the conclusion that he should not remove his hand from the land.
3. Delay - It was claimed that the claim was filed with considerable delay that necessitates its dismissal in limine.

Discussion and Decision

1. Section 16 of the Real Estate Law, 5729-1969, states:

"Claim for the delivery of land

16. A landowner and a person who is entitled to hold them is entitled to demand the delivery of the land from the person who holds it illegally."

1. In order to succeed in a lawsuit filed under section 16 of the Land Law, "the plaintiff must prove both his own right to hold the land and the defendant's lack of right to hold it.  The success of the claim depends on the proof of these cumulative conditions" [Civil Appeal Authority 5518/98 Yitzhak Yosef v.  Avigdor Okshi, IsrSC 55(3) 294 (2001), at p.  304 E.  See also: Civil Appeal Authority 4311/00 State of Israel v.  Eliezer Ben Simhon, IsrSC 58(1) 827 (2003), at p.  836 G, para.  12].
2. As for the second condition, we are dealing with proof of a negative foundation that, in accordance with case law, a low evidentiary standard is sufficient and the court will suffice with a lesser amount of evidence to lift the burden and transfer it to the other party, due to the inherent difficulty in proving a negative element [Civil Appeal 296/82 Dr.  Yeshaya Nebenzel v.  Jersey Nuclear - Abaco Isotopos Inc., IsrSC 40(3) 281 (1986), at pp.  301 E-F; Civil Appeal Authority 8061/12 Eli Shmueli v.  Haim Makmal [Nevo] (24/01/2013), para.  6; and Civil Appeal 7340/13 State of Israel v.  Nimer Majid Al-Shaar [Nevo] (11/10/2015), para.  46].
3. Trespassing in real estate is also a tort under sections 3 and 29 of the Torts Ordinance [New Version].  If trespassing is proven, the court will be authorized to issue an order for the removal of the intruder, as well as an injunction whose practical result is the restitution of the property in kind [sections 71-72 of the Torts Ordinance .  See also: Civil Appeal 8661/10 Yosef Naama v.  Tamar Turkey [Nevo] (February 19,2012), para.  14; and A.  Barak, "The Return of the Object in Eye, " The Law of Torts - The General Theory of Torts (G.  Tedeschi, ed., 2nd edition, 1977), at p.  557 and at p.  560].
4. Copied from Nevo Section 30 of the Torts Ordinance transfers to the defendant in trespass claims the burden of proving that his presumption is lawful.  In Civil Case (Shalom Nevo) 51561-08-19 State of Israel Development Authority v.  Wakim Abu Fares [Nevo] (August 4,2023), I expressed my position that the said section transfers the burden of persuasion to the defendant.
5. On the relationship between the two grounds - the one under section 16 of the Land Law and the one under sections 29-30 of the Torts Ordinance - I discussed in my judgment in the Abu Fares case above [also regarding the relationship between the proprietary cause of action and the tort and the applicability of the latter to proprietary claims, see the different opinions of the late Justice Y.  Turkel versus that of the Honorable Justice Y.  Englard in the judgment in Civil Appeal Authority 6339/97 Moshe Rocker v.  Moshe Salomon, IsrSC 55(1) 199 (1999), and the opinions of the scholars mentioned in their opinions].
6. In order for a plaintiff to win his claim, it is sufficient for him to prove ownership of the land, in which case the burden shifts to the defendant to prove that he has a presumptive right to it [Civil Appeal 483/62 Walter Koch and Deborah Kaplan Koch v.  Yova Duchan and Leah Landau, IsrSC 17 1953 (1963), at p.  1957 C; Civil Appeal 509/64 Plot Company 38/1+38/5 in Block 6667 Ltd.  v.  Victoria Levy, IsrSC 19 169 (1965), at p.  177 Risha; and the words of Justice Ben-Porat in Civil Appeal 127/77 Malka Coffee v.  Yosef Levy et al., IsrSC 31(3) 455 (1977), at pp.  464 E-F].
7. In our case, the first condition is met, since an examination of the registration document relating to Plot 13 shows that the plaintiff is registered as the owner of the rights in parts of the ownership rights in Plot 13 in a total area of 63.74 square meters.  Although this is joint land, in accordance with Section 27 of the Land Law, 5729-1969, the ownership of each partner in the land extends to each and every site in the land.
8. In addition, according to section 31(a)(3) of the Real Estate Law, a partner in real estate may, without the need to obtain the consent of the other partners, "do anything reasonably necessary to prevent damage that may be caused to the land and to protect the ownership and possession thereof" (emphasis mine, A.S.).
9. The case law held that by virtue of section 31(a)(3) of the Real Estate Law, each of the partners in the property is entitled to file a claim for eviction and is not obligated to file the claim on behalf of all the partners [see the judgment of the late President Shamgar in Civil Appeal Authority 1475/94 Pierre Bouchard v.  Ruth Friedlander [Nevo] (September 13,1994); as well as the decision of the Honorable Justice Zilbertal (as he was then called) in Request for Leave to Appeal (Jerusalem District) 1028/09 Fortuna Matot v.  Estate of the late Esther Moshe Aharon Mizrahi z" l [Nevo] (October 18,2009), para.  7].  "Since a joint owner has the right to protect his share in the common property, he should be allowed to act to protect the entire property, because only in this way can he act to protect his own share of the property" [Yehoshua Weissman, Property Law - Ownership and Partnership (1997), at p.  249].  Hence, a single partner in joint real estate is authorized to file a claim for eviction against an intruder.
10. This is all the more so when in our case the area held by the defendant out of the area of Plot 13 is within the boundaries of the specific lot that was transferred to the plaintiff's father in accordance with the exchange agreement with the Administration, and all as described and explained in the opinion of the surveyor Zibak.
11. As may be recalled, the defendant claimed that at the time of filing the lawsuit (in 2022), the plaintiff was not the registered owner of the land.  Indeed, as stated above, only in 2025 was the plaintiff registered as the owner of some of the ownership rights in Plot 13, but this does not lead to the acceptance of the claim.  The right to sue under Section 16 of the Land Law is granted not only to the landowner but also to the person who is entitled to hold them.  This is how it was ruled in Civil Appeal 50/77 Eliyahu Mizrahi v.  Albert Aflalo, IsrSC 31(3) 433 (1977):

"This section does not limit the right of claim to the holder of the land who is also the registered owner.  This section is found in chapter 3, which deals with ownership and possession, and in section B, which deals with the protection of ownership and possession, and from the content of the sections it is clear that they deal with possession that is not limited to the possession of the owner...  Most importantly, the wording of the section itself is clear and unequivocal, and it grants the right to demand the delivery of the land from the person who holds it unlawfully, and this right is granted not only to the owner of the land, but also to the person who is entitled to hold it...  Section 16 discusses the protection of the husband and the person entitled to hold, and here the right to hold does not mean limited to the person who is entitled to hold as a registered owner of the land, and the term entitled to hold also extends to the person who received from the registered husband the right to hold the land" (ibid., at pp.  436b-d.  See also: Ben Simhon case, paragraph 12)

1. In case law, it has been held more than once that it is not necessary to register the rights at the Land Registry Office before filing a claim for eviction and as a condition for filing it [Civil Appeal (Tel Aviv District) 36215-01-12 Yaakov Koryat v.  Development Authority [Nevo], Custodian of Absentee Property "Amidar" National Housing Company in Israel Ltd.  (07/05/2013), para.  12], and that under certain conditions it is even possible to do so before the issuance of an inheritance order [Civil Case (Jerusalem District) 73092-01-20 Yitzhak Elisha Levy v.  Mazkeret Hacham Yitzhak Cohen [Nevo] (04/09/2020).  Paragraph 5; Application for Leave to Appeal (Jerusalem District) 1028/09 Fortuna Matot v.  Estate of the Late Esther Moshe Aharon Mizrahi [Nevo] (18/10/2009), para.  7].
2. And back to our case, at the time the claim was filed, the plaintiff already had an inheritance order (given on June 17,2021).  Therefore, since at the time the claim was filed, he had an inheritance order in his possession and in combination with the exchange agreement signed with the Administration, which attests to his late father's right to hold the land (including the invasion area), he had the right to file a claim for eviction, all the more so when in the meantime the plaintiff was registered as one of the joint owners of Plot 13, and therefore, the defendant's claim in this context should be rejected.
3. The question of whether it has been proven that the defendant has a right to possession of that part of the area of Plot 13 must now be discussed.  As may be recalled, in this proceeding, surveyor Zibak was appointed as an expert on behalf of the court for the purpose of examining the situation in the land that is the subject of the dispute.  The expert reached a clear conclusion that the defendant holds an area of 15 square meters of the area of Plot 13.  The expert reached this conclusion after reviewing the documents presented to him, examining the various plans submitted to the local committee over the years, and after taking measurements in the area.  According to the expert's conclusions, the area at the center of the dispute belongs to the plaintiff.  This area, which is 15 square meters, is held by the defendant and serves as an open parking lot.  This is the area of the invasion.
4. In addition, Surveyor Zibak found that the defendant actually holds a plot of 480 square meters out of the area of Plot 12, and in addition, he is entitled to an area of 19 square meters of the area of that plot in accordance with the judgment given in the framework of Civil Case Case (Shalom Nazareth) 4688/98, despite the fact that in accordance with the [Nevo] Division Agreement of 02/09/1992, the size of the defendant's plot is 454 square meters (pp.  19,24 and 25 of the Opinion).
5. It should be noted that the defendant sent the expert Zibak clarification questions, and the expert answered them in a matter-of-fact and detailed manner without changing his determinations and conclusions in his opinion.
6. It should also be noted that none of the parties has announced their desire to investigate the expert Zibak, which means that there is no dispute about the content of his opinion, and in any event, this works in favor of the expert's credibility [Civil Appeal 8291/16 Leumit Health Fund v.  Anonymous [Nevo] (October 17,2018), para.  7; Civil Appeal 8147/13 Granot Ventures Ltd.  v.  Arnon Gizelter [Nevo] (November 8,2015), para.  22; Civil Appeal 4445/90 "Amigur" Ltd.  v.  Yitzhak Mayost et al.  [Nevo] (April 17,1994), para.  7; Civil Appeal 260/82 Shimon Salomon v.  Sasson Emunah, IsrSC 38(4), 253, at pp.  258A-B; Civil Appeal (Tel Aviv District) 1286/03 Aspen Construction and Development Ltd.  v.  Alon Arban [Nevo] (March 24,2005), para.  5(a); and Civil Case (Jerusalem District) 1950/87 Dr.  Avraham Fischer v.  A.  Treger Apartments for Rent Jerusalem (1974) Ltd.  [Nevo] (March 28,1991)].
7. The defendant claimed that in accordance with the partition plan agreed upon between all the partners from 1992, according to him, the area held by him belonged to him (paragraphs 5-6 of the defendant's affidavit).  First, the expert Zibak referred to the partition plan on which the defendant bases his aforesaid claim, both in his opinion (pp.  17-19 of the opinion) and in his answers to the clarification questions (paragraph 2 of the expert's answers), and clarified that according to the said division drawing, "the area of the defendant's lot was determined at 454 square meters (out of plot 12 only), with the consent of the owners", while "the incorporation mark symbolizes that the area of the triangle (the disputed area) is not included in the defendant's lot" (emphasis in original) (p.  19 of the opinion).
8. Second, the expert Zibak detailed in his answers to the clarification questions that the said sketch was not signed by the owners of the rights of Plot 13, but only by the rights holders of Plot 12, and on the part of the sketch that referred to part of Plots 13 and 16, "there was a note in the body of the Partition Sketch that lacked signatures" (emphasis in original), and therefore he referred to this sketch as a division sketch of Plot 12 only (paragraph 2 of the Clarification Answers).
9. Expert Zibak further mentioned that even in the previous proceeding that took place between the defendant and his brother, on the one hand, and the plaintiff's brother, on the other hand - Civil Case 4688/98 - the area in dispute was not included in the framework of the defendant [Nevo's] lot (paragraph E of the comments on p.  2 of the expert's answers to the clarification questions), and as also appears from the sketch that was brought in the body of the opinion (pp.  22-23 of the opinion).
10. In his answers to the clarification questions, surveyor Zibak referred to the defendant's claims and detailed the various plans and drawings submitted by the parties and the existence of an agreed consolidation and division plan signed by all the owners of Plot 13, according to which the area occupied by the defendant out of the area of Plot 13 was granted to him.

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1.  Expert Zibak emphasized both in his opinion and in his answers to the clarification questions that there is no consolidation and division plan agreed upon by all the owners of Plot 13 and signed by them, according to which the defendant was granted the area of the triangle that is the subject of the dispute (the area of the invasion), and there was no such proceeding without consent in accordance with the mechanism set forth in section 122 of the Planning and Building Law, 5725-1965.  Indeed, only such a planning proceeding could have changed the array of property rights [Sarit Dana, Shalom Singer Planning and Building Law (2015), at pp.  1111-1113.  See also: Appeal of Petition/Administrative Claim 2279/19 The Committee for Preferred Housing Complexes (VTAMAL) v.  Israel Neumann [Nevo] (July 24,2019), para.  16].  This is the only exception to the rule, according to which "planning institutions are not authorized to decide on property questions and that their role is purely planning" [Civil Appeal Authority 25633-10-25 Bnei Brak Municipality v.  Israel Land Authority [Nevo] (November 16,2025), para.  7].
2. Also on this matter, see the words of the Honorable Judge Y.  Amit (as he was then called) in Appeal Petition/Administrative Claim 229/15 District Planning and Building Committee v.  Yosef Zoabi (Nevo, August 9,2018):

"As is well known, a consolidation and division plan has a planning aspect and a proprietary aspect, since it redistributes the proprietary rights and enables their registration...  On the level of principle, I accept the argument of the State and the appellants that in order to approve a consolidation and division plan by consent, the consent of all the owners of the rights in the land must be obtained.  This interpretation is necessary, both in view of the significant proprietary implications of consolidation and division plans, and in light of section 122 of the Law, which uses the language "the consent of all the owners concerned", i.e., the consent of all those defined by law as owners...  In short, it is difficult to fit a consolidation and division plan that purports to be 'consensual' when the consent of the owners of the property rights has not been given" (ibid., paragraph 8)

1. Finally, it should be noted that a deviation from the opinion of an expert appointed by the court and who is his long hand will be done only in exceptional cases and for weighty reasons, or in the case of a glaring error in the opinion [Civil Appeal 293/88 Yitzhak Neiman Rental Company Ltd.  v.  Monti Rabi [Nevo] (December 31,1988), para.  4; Civil Appeal 8329/16 Trans Atlas Ltd.  v.  Eliyahu Farhi Upholstery Fabrics Ltd.  [Nevo] (04/06/2018), para.  18; Civil Appeal 4179/17 More Insurance Agency (1989) Ltd.  v.  Eran Rubin [Nevo] (06/12/2018), para.  57; Civil Appeal 3056/99 Roy Stern v.  Haim Sheba Medical Center, IsrSC 56(2) 936 (2002), 948 G - 949 A-B].  The defendant did not prove that there was such an error in the opinion of the expert Zibak.
2. In summary, since the detailed answers of the expert Zibak are satisfactory and there was no error in them, and since his position regarding the alleged partition plan is consistent with the legal situation as detailed above, and given the fact that the defendant waived the expert's interrogation, I did not find justification for deviating from the determinations and conclusions of the expert Zibak, which are appropriate to the legal situation as stated above, and therefore I accept them.
3. Yesterday, the defendant filed an urgent motion to attach a substantive decision of the District Appeals Committee for Planning and Building - Northern District, which was given on 03/08/2026, according to which the plaintiff's appeal against the decision of the local planning and building committee to approve, under conditions, plan No. 251-1240118 - division into plots in block 22515, plot 12, submitted by the Bustan al-Marj Regional Council, was rejected.  According to him, "the decision fully confirms and establishes the planning situation and the defendant's defense arguments as detailed in detail in his summaries" (paragraph 2 of the application).
4. I did not find it necessary to transfer the request to the plaintiff's response, because its acceptance does not change my conclusions and determinations above.  Not only does the decision of the Appeals Committee not substantiate the defendant's arguments, but rather the opposite.  The said decision is actually consistent with the determinations and conclusions of Surveyor Zibak and my determinations and conclusions above.  Indeed, at the center of the appeal and the plaintiff's objection to the said plan is the area of the invasion and his claims regarding his share in Plot 13.  However, the Appeals Committee determined and clarified that the plan opposed by the plaintiff was not a plan for consolidation and division in relation to Plot 13, but only a planning division, and that it was necessary to initiate a future proceeding for consolidation and division in relation to those parts of Plot 13 included therein, and it was determined as follows:

"43.  However, it is clear from the documents placed before us that the inclusion of the area in dispute within the boundaries of the proposed plan is intended to complete the adjacent building lots that are part of Plot 12, while it was clarified that "after the approval of this plan, it will be necessary to merge them with the adjacent lots" and that "we were required to include this area within the boundaries of the plan because they are complementary to the lots and according to which the building lines will be determined".

44. In other words, with respect to Plot 13, we are therefore not dealing with a plan of consolidation and division, but only a planning division of the said lots, i.e., the determination of new areas of space, which includes a reduction in the size of a minimum plot in accordance with the authority of the local committee (m) by virtue of section 62A(a)(7) of the Law, while it was clearly clarified in section 6.2D of the proposed plan that a condition for granting a building permit in the disputed area is "an arrangement of consolidation and division with Plot 13".
45. Thus, with respect to Plot 13 - and only to it, the proposed plan does not include provisions for consolidation and division and such provisions will be included in the framework of a future plan, and therefore, with respect to Plot 13, the provision of section 62A(a)(1) of the Law has no effect and there is no need for the consent of the owner or the sole proprietor." (emphases in original)

1. Below I will briefly address the defendant's additional claims: Building in accordance with the permit - the defendant claims that he built the fence in accordance with the building permit he received lawfully.  It has already been held that a building permit does not infringe or override the property rights of others, just as it does not prevent the owners of the property right from "turning to the competent courts and receiving the same remedies to which they are entitled by virtue of their right of ownership of the property and by virtue of the binding legal relationship between them and the owners, who requested the permit, whether by means of a remedy that will prevent the granting of the permit or prohibit construction in accordance therewith" [High Court of Justice 305/82 Yosef Mor v.  District Planning and Building Committee, Central District, IsrSC 38(1) 141 (1984), at pp.  148b-c.  See also: Civil Appeal Authority (Hai District) 50535-09-20 Bolus Maha v.  Ashraf Shahin [Nevo] (September 30,2020), para.  10; and Civil Appeal (Hai District) 7269-07-12 Amiram Barbakov v.  Yehoshua Lugasi [Nevo] (May 27,2013)].  "The planning and building committees deal only with the planning aspect, and it is clear that a building permit should not be seen as an approval to annex land belonging to another, and it does not shield the builder against proprietary claims" [Civil Case (Central District) 53346-08-10 Daniel Kaushani v.  Amos Ben Natan [Nevo] (August 4,2013), para.  49].
2. As for the defendant's right to an additional area of 19 square meters in accordance with the judgment in Civil Case 4688/98 [Nevo], this is a defined area from Plot 12 that is located elsewhere as explained in the sketch prepared by the surveyor Zibak (pp.  23-24 of the opinion).
3. Delay - In the statement of defense, the defendant claimed a considerable delay in filing the claim (paragraph 27 of the statement of defense), but he did not repeat this argument in his summaries.  Therefore, I am not required to address the claim of delay, in light of the rule that "a claim that was made in the statement of claims but was not raised in the summaries - whether due to mistake or intentionally - is lawful as a claim that was neglected, and the court will not rule on it" [Civil Appeal 447/92 Henry Roth v.  InterContinental Credit Corporation, IsrSC 49(2) 102, at pp.  107 f-g.  See also: Civil Appeal Authority 3642/15 Shlomo Edri Electrical Services Ltd.  v.  Shimon Edri [Nevo] (09/06/2015), para.  6; Civil Appeal 2950/07 Younis Muhammad Suleiman v.  State of Israel - Israel Lands Administration [Nevo] (October 26,2009), para.  32; and Civil Appeal 8168/03 Yair Arnon v.  Zoabi Electricity Ltd.  [Nevo] (November 8,2009), para.  28].
4. In any event, the defendant did not show in his summaries that the conditions for rejecting a claim due to a delay in filing it were met [for the required conditions, see: Civil Appeal 2950/07 Younes Muhammad Suleiman v.  State of Israel - Israel Lands Administration [Nevo] (October 26,2009), para.  33; Civil Appeal 2919/07 State of Israel - Atomic Energy Commission v.  Edna Guy-Lippel, IsrSC 66(2) 82 (2010), paragraph 96 of the judgment of the Honorable Justice (as he was then called) Y.  Amit; Civil Appeal 6182/14 Invastelum Holdings Ltd.  v.  Yefet Library Ltd.  [Nevo] (3/05/2016), para.  13; Civil Appeal 9839/17 Habitat Ltd.  v.  CAFOM [Nevo] (17/12/2018), paragraphs 33-34], and it has already been held that "a delay in filing a claim does not in itself attest to the plaintiff's waiver or waiver of the right to sue.  Delay within the limitation period is the right of the litigant" [Civil Appeal 6805/99 Talmud Torah General and Yeshiva Etz Chaim in Jerusalem v.  Local Planning and Building Committee, Jerusalem, IsrSC 57(5) 433 (2003), at p.  446 E].  A stricter approach is taken even more strongly when "the court is asked to refrain from recognizing a proprietary right on the grounds of delay in filing the claim" [Civil Appeal 5793/96 Haim Haim v.  Aharon Haim, IsrSC 51(5) 625 (1997), at p.  635D].
5. Beyond what is required, it should be noted that the claim was filed shortly after the defendant built an addition to the fence within the area of the invasion (see p.  9 of the transcript, verses 20-21 and verses 30-32), and therefore it is difficult to reconcile the claim of delay.
6. Judicial estoppel - the defendant claims that the plaintiff is prevented and silenced from claiming that the area belongs to him since in the plan he submitted for the purpose of obtaining a building permit, he relied on the said partition plan from 1992, and the area in dispute did not appear in it as part of the plaintiff's plot (paragraphs 8-10 of the defendant's summaries).
7. First, the claim was not raised in the framework of the statement of defense.  Prof.  Issachar Rosen-Zvi is of the opinion that "according to the new regulations, the defendant is obligated to specify in the statement of defense not only the facts that deny the plaintiff's right to receive the relief requested by him, but also the legal arguments on which he bases his defense in a concise manner" (my emphasis, A.S.) [Issachar Rosen-Zvi, The Reform of Civil Procedure: Guide of the Perplexed (2025), at p.  159], This position was adopted in a number of decisions of the district courts [see, for example, Civil Case (Tel Aviv-Jaffa District) 42380-10-21 Gil Orly v.  Chaya Zelda Orlev et al.  [Nevo] (August 15,2023), paragraphs 28-29; Civil Case (Central District) 22172-08-22 Eliezer Hai Mobushovich v.  Gezel Avraham [Nevo] (September 7,2023), para.  46; Liquidations (Tel Aviv District) 18816-03-23 Eurocom Communications Ltd.  v.  The Official Receiver [Nevo] (September 18,2023), para.  26; Civil Case (Tel Aviv District) 46847-04-22 Avraham Dov Raved v.  David Freundlich [Nevo] (November 19,2023), para.  6].
8. Second, the defendant did not discuss the conditions for the establishment of judicial estoppel as they were determined in the case law and did not show that they exist in our case.  In this context, I will add and note that it is doubtful whether there is any application to the aforesaid rule, given the fact that there was no previous legal proceeding in which the plaintiff raised a contradictory claim, and in any case there was no decision on such a claim.
9. Thirdly, on the merits of the matter as well, I did not find any substance in the argument.  Indeed, in the application for a building permit submitted by the plaintiff in the framework of a building case 20/01, pursuant to which a permit was issued to him on 27/08/2001 (attached to the Public Works Authority of 26/03/2025 that was accepted by the court on 03/04/2025), the area in dispute was not marked as part of the plaintiff's plot, but this does not indicate that the plaintiff gave up this area in favor of the defendant.
10. Moreover, at that time, the plaintiff's share in the area of Plot 13 in accordance with the Inheritance Order was 21.25 square meters (1/16 of his share according to the Inheritance Order * 340 square meters of the plot that came to his father according to the exchange transaction with the Administration), but according to his version, in 2024 his two brothers - Adel and Hussein - transferred to him their shares in Plot 13 - 21.25 square meters each (p.  5 of the minutes, Shares 5-17), and this version is consistent with what emerges from the title deed that was attached to the opinion of surveyor Zibak, when on 02/02/2025 the plaintiff was registered as the owner of the rights in an area of 21.25 square meters by virtue of "inheritance" and on 17/02/2025 he was registered as the owner of the rights in an additional area of 42.5 square meters by virtue of a "sale without consideration".  Therefore, it should not be inferred from the building application that the plaintiff gave up the area in dispute.
11. Lack of good faith - the defendant further argued that if the measurements of the expert Zibak are accepted, the court must exercise its discretion and refrain from ordering his evacuation from the disputed area in light of the fact that it is a small area and since the damage that may be caused to him - blocking the entrance to his home - is greater than the damage that will be caused to the plaintiff, taking into account that the area is far from his home, while referring to the rulings in the Rocker case and the Turkey case.
12. Indeed, in the case of Turkey, it was held that "the core of the precedent according to which the protection of the property right is subject to the principles of justice, fairness and good faith has acquired a firm foothold in case law and is indisputable" (ibid., para.  13), but at the same time it was clarified that "the expansion of the building ...  constitutes a violation of the right of ownership ...  in the territory of the invasion.  The fact that this is a property right of the first order ostensibly constitutes a central consideration that precludes the other considerations and limits the scope of the application of the principle of good faith" (Turkey case, para.  16).
13. In Civil Appeal Authority 4657/21 Israel Meir Cohen v.  Construction and Development Company Ltd.  [Nevo] (August 3,2022), the Honorable Justice N.  Sohlberg (as he was then called) noted that "the way to go is to grant a relief of removal, when only in 'exceptional cases' will it be determined that there is no justification for granting such relief.  For example, in cases where all the extenuating circumstances have occurred in one inn: it was found that the harm caused by the removal of the hand to the defendant is extreme, because the good faith of the defendant-the squatter is absolute, and that the harm to the landowner, if at all, is light and minimal" (ibid., para.  28).
14. I have not found that our case is so exceptional in its circumstances - the exception of the exceptional - that it justifies a violation of the plaintiff's right of ownership for reasons of justice, fairness and good faith.  The defendant did not point to bad faith conduct on the part of the plaintiff, certainly not to such a level that justifies the denial of his right to protect his property.  It has already been ruled that the mere insistence on the existence of a right is not in itself a lack of good faith.  All the more so when we are dealing with a proprietary right.
15. Needless to say, according to the evidentiary material in the file, including the photographs taken by the expert Zibak (pp.  2 and 7 of the opinion), and including the building plans submitted by the defendant in the framework of construction case 5/14, it appears that there is no substance to the claim that removing his hand from the disputed area will lead to the blocking of the entrance to his house.  There are several entrances to the building and this is not the main entrance.  Indeed, on the face of it, it appears that this will not allow the defendant and the residents of the building to park vehicles in the same place (as they do today as appears from the lower photo on page 7 of the opinion), but this will not completely block access and entry to that part of the building.
16. As to the claim that this is a small area, "this fact, and even the financial and other implications involved from the Respondent's point of view in demolishing the building expansion in the area of the invasion, are not necessarily sufficient to negate the orders for demolition and disposal that the appellant petitioned to them as the owner of the property with respect to the entire area.  This is in view of the high status of the property right and in view of the importance that must be attributed to the maintenance of the rule of law and the existence of an effective deterrent against construction on other people's lands" (Turkey case, paragraph 16).  These words, which were said in relation to a small invasion area of 5.23 square meters, have a better force than any other in our case, where we are dealing with an area of 15 square meters.

See also: Civil Appeal 4077/21 Assi Rimonim Ltd.  v.  Pai Siam Ltd.  [Nevo] (February 28,2023), para.  32.

1. It should also be noted in this context that in the case of Turkey, the court refrained from ordering the removal and demolition only in relation to a small area of 2.3 square meters on which part of the respondent's kitchen was built there, in view of the special circumstances discussed by the Honorable Justice A.  Hayut (as described at the time), but this was not the case with regard to the additional invasion area in the front yard of 2.93 square meters.
2. In our case, the encroachment area serves as a yard and a parking area that serves the defendant and the residents of the building, and part of the defendant's residential building is not built on it.  Therefore, and given the constitutional status of the property right and the importance of protecting it, I find no justification for delaying the defendant's request and refraining from ordering its evacuation and demolition of that part of the fence that was built within the invasion area.
3. Finally, I would like to conclude with the beautiful words of the Honorable Judge Y.  Kasher in Civil Appeals Authority 22773-11-25 Raphael Edri v.  Sara Shalom [Nevo] (March 15,2026):

"It should be emphasized: the case law, which recognized the possibility in principle of limiting a party's insistence on its proprietary rights, does not mean that in every case in which a party insists on its proprietary rights, a kind of balance of damages must be drawn up and the enforcement of the proprietary right must be avoided when the balance of damages is tilted in favor of the defendant (and instead to award monetary compensation).  It was held that the limitation of standing on a proprietary right, by virtue of the principle of good faith, obligates the court to adopt careful discretion and a moderate approach, due to the constitutional status of the property right" (ibid., para.  14)