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Republic of the Philippines

10TH Judicial Region

REGIONAL TRIAL COURT
BRANCH 29
Surigao City

ANESIA MOSENABRE,
7117
Petitioner,

CIVIL CASE NO.
For:

CANCELLATION

OF
ADVERSE CLAIM
-versusELMIE PESCUESO, ET.AL.,
Respondent.
X - - - - - - - - -- - - - - - - - - - - - - - X

POSITION PAPER
(for the Respondent)

Respondents,

through

the

Integrated

Bar

of

the

Philippines-Legal Aid Program acting as Counsel hereof, unto
the Honorable Court most respectfully registers this Position
Paper. Copy of the Order to submit Position Paper within
thirty days (30) was received on March 19, 2010 , thus,
submission of the same today is within the reglementary
period, having the 30th day fall on a Sunday. In furtherance of
this Position Paper, respondent hereby states - -

STATEMENT OF THE FACTS OF THE CASE

The following facts remain undisputed by plaintiff, that
prior to the issuance of a certificate of title, hereto
respondent had filed a Protest before the honorable office of
the Regional Director of the Department of Environment and
Natural Resources (referred as DENR for brevity) at Butuan
City,

praying

thereof

that Elmie Pescauso,

being the

hereto plaintiff. Unfortunately. a Certificate of Title was issued to the applicant. However. and likewise registered at the Register of Deeds in the year 2003. Thus. Copy of the said DENR decision is hereto attached and marked as Exhibit “2”. and made an integral part hereof. Copy of the said Protest is hereto attached and marked as Exhibit “1”. hereto respondent filed the Affidavit of Adverse Claim on the said title. PL-898 into the mass of public domain. and they should continue to occupy the subject parcel of land in the concept of an owner since they are in actual.” Copy of the said Resolution is hereto attached and marked as Exhibit “3”. this Office hereby resolves to request the Honorable Solicitor General to file the necessary complaint for the reversion of Lot 1573. unknown to hereto respondent. copy of the . and made an integral part hereof. who was in possession of the subject property. A Motion for Reconsideration was filed to the above-mentioned DENR decision. despite the pendency of her Protest which was decided in the year 2004. Resultatively. open and notorious possession of such land under the provision of the Public Land Act…”. the application for land title of hereto plaintiff be dismissed and denied for lack of merit. and the said honorable office decided to modify the above-quoted decision. continuous . and stated that. and made an integral part hereof.legitimate daughter of the late Francisco Subaan. the DENR resolved that “the heirs of Francisco Subaan represented by Elmie Pescauso should be given better and superior right over the said property. “the decision promulgated by this Office on 20 January 2004 is hereby modified accordingly considering that any action by the DENR against the Free Patent Application of the respondent would be a mere exercise in futility.

Affidavit of Adverse Claim is hereto marked as Exhibit “4”. ISSUE/S During the Pre-Trial conducted. Purposely. respondent filed a Petition for Annulment of Title. the parties in an Order of the honorable Presiding Judge. and serves as a notice and warning to third parties dealing with the said property that someone is claiming an interest over it or has a better right than the . she caused for the dismissal of the same. Corollary to the affidavit of adverse claim.” DISCUSSION AND ARGUMENTS Undeniably the filing of the adverse claim by hereto respondent has sufficient basis. as the non-dismissal could result in a violation of the rules on non-forum shopping. dated March 16. Within the purview of these facts. and made an integral part hereof. since an action for Reversion shall be filed by the DENR. due to a favorable decision on her part rendered by the DENR. Reconveyance and Damages at the Regional Trial Court. “were advised to submit their respective position paper on the issue of whether or not the adverse claim has to be cancelled. 2010. the “annotation of an adverse claim is a measure designed to protect the interest of a person over a part of real property. However. hereto plaintiff filed the instant case for the cancellation of the adverse claim.

Such demand however went unheeded.R. Thus. 102377. Corporation. the dismissal of the petition for the annulment of the title was made in view of the recent decision of the DENR declaring that the subject parcel of land shall be reversed into the mass of the public domain.” Sajonas v. vs. Sentence three.D. et. 1996. “In ascertaining the period of effectivity of an inscription of adverse claim. No. 93 as cited in [G. No. the hereto petition is therefore solely sought for due to the lapse of the thirty (30) day period from the registration of the adverse claim. 1529 provides: "The adverse claim shall be effective for a period of thirty days from the date of registration. “[C]onsidering that the aforesaid Adverse Claim had already lapsed for more than thirty (30) days. [G. there was no need of an annulment proceeding. Pescauso for the latter to cause the cancellation of such adverse claim. arguably. Court of Appeals.] Navotas Industrial September 12.” Reading from such allegation. the High Court has said in Alfredo Sajonas and Conchita Sajonas. we reiterate. July 5. petitioner demanded from respondent Elmie S.R. if the hereto cancellation is sought for because of the lapse of the thirty day period. paragraph two of Section 70 of P. vs. Domingo Pilares and Register of Deeds of Marikina.al. Court of Appeals. 159212. Pecauso was dismissed with finality. 2005.registered owner thereof.] that. Hereto petitioner anchors her claim for cancellation of the adverse claim on the ground that the said claim has lapsed. German Cruz. we must read the law in its entirety. supra. p." At . It must be noted that. Quoting paragraph 7 of her petition. he said that. thus. and considering further that the case filed by Elmie S.

and the expiry of the thirty period set by law." If the rationale of the law was for the adverse claim to ipso facto lose force and effect after the lapse of thirty days. otherwise. the law would not have required the party in interest to do a useless act. claim for thirty days from the date of registration. in this instance where the DENR itself said in the decision above referred to. it invalidates the certificate of title issued to . notwithstanding such provision limiting the effectivity of an adverse. But the above provision cannot and should not be treated separately. the Supreme Court continued in the abovequoted decision and said that. which in effect. that the subject lot would be reversed to the mass of public domain. A fortiori. the limitation on the period of effectivity is immaterial in determining the validity or invalidity of an adverse claim which is the principal issue to be decided in the court hearing. the annotation of adverse claim may be cancelled upon filing of a verified petition therefor by the party in interest. as inherent in its decision making power. the hereto adverse claim CANNOT be cancelled as sought for by petitioner. but should be read in relation to the sentence following. that the court may or may not order the cancellation of an adverse claim.) Thus.” Further. The court cannot be bound by such period as it would be inconsistent with the very authority vested in it. indirectly. its cancellation is no longer necessary and the process of cancellation would be a useless ceremony. taken together. which reads: "After the lapse of said period. For then. with all due respect. no adverse claim need be cancelled. “It should be noted that the law employs the phrase "may be cancelled" which obviously indicates. As we have said. ARE NOT sufficient and satisfactory to merit the cancellation of the adverse claim. The law. the inscription will remain annotated and shall continue as a lien upon the property. then it would not have been necessary to include the foregoing caveat to clarify and complete the rule. For if the adverse claim has already ceased to be effective upon the lapse of said period. the dismissal of the petition for annulment of title filed by hereto respondent under the circumstances thereof. the provision in question would seem to restrict the effectivity of the adverse claim to thirty days. simply means that the cancellation of the adverse claim is still necessary to render it ineffective.first blush. Petitioner failed to establish a strong reason and ground for the honorable Court to grant their prayer. Moreso. If it has been automatically terminated by mere lapse of time.” (Ibid.

R. It would seem prudent under the prevailing circumstances. the adverse claim should not be cancelled so as to give protection. The Heirs of Rogelio Cruz.hereto petitioner. September 12. and serves as a notice and warning to third parties dealing with the said property that someone is claiming an interest over it or has a better right than the registered owner thereof.. He is only charged with notice of the burdens on the property which are noted on the face of the register or certificate of title. et. (Navotas Industrial Corporation. German Cruz. respondent cannot be protected on its claim over the subject property. CA. “under the Torrens system. subject of course to the reversion proceedings. represented herein by its acting president Daniel Bautista vs. granting the cancellation of the adverse claim would open the gates to many possible legal problem.) Thus. et. Further. instead of giving a cure to an existing malady. On the other hand. if the cancellation is granted. registration is the operative act which gives validity to the transfer or creates a lien upon the land. Marcelo Cruz. “The annotation of an adverse claim is a measure designed to protect the interest of a person over a part of real property. would not know of the existing conflict between petitioner and respondent in as much as the certificate of title is already clean of any adverse claim thereof.al. any purchaser for value of the land.al. A person dealing with registered land is not required to go behind the register to determine the condition of the property. that pending the reversion proceedings.” (Ibid. . 159212. hereto respondent. 2005. to whom the law intends to. Sajonas vs.]). No. [G. In such a case.

Surigao City . “[W]hile it is the act of registration which is the operative act which conveys or affects the land insofar as third persons are concerned. with the adverse claim annotated on the certificate of title. possible legal problems could be avoided. et. duly sworn to and annotated on the certificate of title previous to the sale. it is likewise true. INTEGRATED BAR OF THE PHILIPPINES-SDN CHAPTER Legal Aid Program Counsel for Respondent By: STELLA C. MOST RESPECTFULLY SUBMITTED. Thus. Thus. any transfer of the subject property pending resolution of the sought to be filed reversion proceedings. that the hereto petition for the cancellation of the adverse claim be DENIED. and that the prayer for damages likewise be DENIED . Philippines. that the subsequent sale of property covered by a Certificate of Title cannot prevail over an adverse claim. 1452573 1-4-10 . as we have substantially shown. we respectfully pray. In fact the Supreme Court have said that. All other just and equitable reliefs and remedies are prayed for. with all due respect. would properly give notice to the transferee of the existing condition affecting the said parcel of land.” (Ibid.). CABAHUG-RANALAN Roll Number 44817 IBP Lifetime Member No. CA. it not minimized. April 16. Sajonas vs. 08295 3-18-09 PTR OR No.and to third parties that may come across the subject property. As such.al. 2010.

Rizal St..MCLE Compliance III-0007148 12-29-09 3F del Castillo Bldg. Surigao City Telefax Number (086) 232-7629 ..