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NAPOLEON GEGARE vs. HON.

COURT OF APPEALS
(ELEVENTH DIVISION) AND ARMIE ELMA
G.R. No. 83907. September 13, 1989.

FACTS:
The case involves a land wherein the parties obtained
equal shares by virtue of a Board Resolution, while
respondent does not contest any objections with regard to
her share, the petitioner herein wants the entire property.
The land in controversy was located in Dadiangas
General Santos City and under the name of Paulino Elma the
father of the respondent herein. A reversion case was filed
by the Republic of the Philippines against Paulino Elma in the
Court of First Instance of South Cotabato, wherein in due
course a decision was rendered on January 29, 1973
declaring the title of Paulino Elma null and void and the
same was ordered cancelled. The lot was reverted to the
mass of public domain subject to disposition and giving
preferential right to its actual occupant, Napoleon Gegare.
Both petitioner and private respondent filed an
application for this lot in the Board of Liquidators. The Board
of Liquidators ruled in favor of the petitioner on the ground
that the said land was acquired by him by way of negotiated
sale. A motion for reconsideration filed by private
respondent was favorably considered by the Board in
Resolution. Thus, the Board directed the chief of LASEDECO
to investigate the occupancy and area of the lot. In this
investigation, it was found that only private respondent was
the actual occupant so the LASEDECO chief recommended
the division of the property between petitioner and private
respondent.The Board Resolution on approving said
recommendation by dividing the lot equally between the
parties at 135.5 square meters each to be disposed to them
by negotiated sale.
Petitioner filed an action for "Annulment and
Cancellation of Partition of Lot to Declare them Null and
Void" against private respondent and the Board. Private
respondent filed a motion to dismiss the complaint on the
following grounds: (1) lack of jurisdiction over the subject
matter; (2) petitioner has no capacity to sue; (3) petitioner
is not a real party-in-interest; and (4) the action is barred
by prior judgment. Private respondent added another ground
(5) lack of conciliation efforts pursuant to Section 6 of
Presidential Decree No. 1508. Petitioner moved for a
reconsideration thereof to which an opposition was filed by
private respondent. The motion for reconsideration was
granted and private respondent was required to file his
responsive pleading. Private respondent filed his answer.
Private respondent asked for a preliminary hearing of the
grounds for the motion to dismiss in his affirmative
defenses. The same was denied.
The respondent filed a petition for certiorari and
prohibition in the Court of Appeals in which the said petition
was granted. Thus petitioner now questions the decision of
the Court of Appeals.

ISSUE:
1. Whether or not Court of Appeals erred in deciding
without first serving the summons and a copy of the
petition to the respondent now herein the petitioner.

RULING:
The petition is devoid of any merit.
1. Private respondent disputes this claim by showing that it
was at the address of petitioner appearing in the petition at
Liwayway Disco Restaurant and Disco Pub, Ilang-Ilang
Street, General Santos City, where petitioner was served a
copy of private respondent's "Manifestation and Motion for
Early Resolution . Petitioner's counsel was also served a
copy of the resolution. Moreover, petitioner's counsel filed a
motion seeking a