THIRD DIVISION

G.R. No. 137944 April 6, 2000

FERNANDA MENDOZA CEQUEÑA and RUPERTA MENDOZA

LIRIO, petitioners,
vs.
HONORATA MENDOZA BOLANTE, respondent.

PANGANIBAN, J.:

Tax receipts and declarations are prima facie proofs of ownership or

possession of the property for which such taxes have been paid.
Coupled with proof of actual possession of the property, they may
become the basis of a claim for ownership. By acquisitive prescription,
possession in the concept of owner — public, adverse, peaceful and
uninterrupted — may be converted to ownership. On the other hand,
mere possession and occupation of land cannot ripen into ownership.

The Case

Before us is a Petition for Review on Certiorari of the March 19, 1999

Decision 1 of the Court of Appeals 2 (CA) in CA-GR CV No. 43423. The
assailed Decision disposed as follows: 3

WHEREFORE, for all the foregoing, the decision of the trial court
appealed from is REVERSED and SET ASIDE. In lieu thereof, judgment is
hereby rendered declaring . . . Honorata Mendoza Bolante the rightful
owner and possessor of the parcel of land which is the subject of this
appeal.

The Fact s

The Petition herein refers to a parcel of land situated in Barangay

Bangad, Binangonan, Province of Rizal, having an area of 1,728 square
meters and covered by Tax Declaration No. 26-0027. The undisputed
antecedents of this case are narrated by the Court of Appeals as
follows: 4

The facts not disputed revealed that prior to 1954, the land was
originally declared for taxation purposes in the name of Sinforoso
Mendoza, fat her of [respondent] and married to Eduarda Apiado.
Sinforoso died in 1930. [Petitioners] were the daughters of Margarito
Mendoza. On the basis of an affidavit, the tax declaration in the name
of Sinforoso Mendoza of the contested lot was cancelled and
subsequently declared in the name of Margarito Mendoza. Margarito
and Sinforoso are brothers. [Respondent] is the present occupant of the
land. Earlier, on October 15, 1975, [respondent] and Miguel Mendoza,
another brother of [petitioners], during the cadastral survey had a
dispute on [the] ownership of the land.1âwphi1.nêt

During the pre-trial conference, parties stipulated the following facts:

1) The land subject of the case was formerly declared for taxation
purposes in the name of Sinforoso Mendoza prior to 1954 but is now
declared in the name of Margarito Mendoza.

2) The parties agree[d] as to the identity of the land subject of instant

case.

3) [Petitioners] are the daughters of Margarito Mendoza while the

[respondent] is the only daughter of Sinforoso Mendoza.

4) Margarito Mendoza and Sinforoso Mendoza [were] brothers, now

deceased.

5) During the cadastral survey of the property on October 15, 1979 there
was already a dispute between Honorata M. Bolante and Miguel
Mendoza, brother of [petitioners].

6) [Respondent was] occupying the property in question.

The only issue involved [was] who [was] the lawful owner and possessor
of the land subject of the case.

After trial, the court a quo rendered its judgment in favor of [petitioners],
the dispositive portion of which reads as follows:

Wherefore, in view of the foregoing considerations, judgment is hereby

rendered for the [petitioners] and against the [respondent]:

1. Declaring that the parcel of land situated in Bangad, Binangonan,

Rizal covered by tax declaration no. 26-0027 in the name of Margarito
Mendoza belong to his heirs, the [petitioners] herein;

2. Ordering [respondent] to vacate the property subject of the case

and deliver possession thereof to the heirs of Margarito Mendoza.
3. Ordering the [respondent] to indemnify the [petitioners] in the sum of
P10,000.00, as actual damages.

4. Ordering the [respondent] to pay the costs.

Ruling of t he Court of Appeals

The Court of Appeals reversed the trial court because the genuineness
and the due execution of the affidavit allegedly signed by the
respondent and her mother had not been sufficiently established. The
notary public or anyone else who had witnessed the execution of the
affidavit was not presented. No expert testimony or competent witness
ever attested to the genuineness of the questioned signatures.

The CA further ruled that the affidavit was insufficient to ov ercome the
denial of respondent and her mother. The former testified that the latter,
never having attended school, could neither read nor write.
Respondent also said that she had never been called "Leonor," which
was how she was referred to in the affidav it.

Moreover, the appellate court held that the probative value of

petitioners' tax receipts and declarations paled in comparison with
respondent's proof of ownership of the disputed parcel. Actual, physical,
exclusive and continuous possession by respondent since 1985 indeed
gave her a better title under Article 538 of the Civil Code.

Hence, this Petition. 5

Issues

Insisting that they are the rightful owners of the disputed land, the
petitioners allege that the CA committed these reversible errors: 6

1. . . . [I]n not considering the affidavit as an exception to the general

rule that an affidavit is classified as hearsay evidence, unless the affiant
is placed on the witness stand;

2. . . . [I]n holding that respondent has been in actual and physical

possession, coupled with . . . exclusive and continuous possession of the
land since 1985, which are evidence of the best kind of circumstance
proving the claim of the title of ownership and enjoys the presumption
of preferred possessor.

The Court 's Ruling

The Petition has no merit.

First Issue:

Admissibility of t he Affidavit

Petitioners dispute the CA's ruling that the affidavit was not the best
evidence of their father's ownership of the disputed land, because the
"affiant was not placed on the witness stand." They contend that it was
unnecessary to present a witness to establish the authenticity of the
affidavit because it was a declaration against respondent's interest and
was an ancient document. As a declaration against interest, it was an
exception to the hearsay rule. As a necessary and trustworthy
document, it was admissible in evidence. And because it was executed
on March 24, 1953, it was a self-authenticating ancient document.

We quote below the pertinent portion of the appellate court's ruling: 7

While it is true that the affidavit was signed and subscribed before a
notary public, the general rule is that affidavits are classified as hearsay
evidence, unless affiants are placed on the witness stand (People's
Bank and Trust Company vs. Leonidas, 207 SCRA 164). Affidavits are not
considered the best evidence, if affiants are available as witnesses
(Vallarta vs. Court of Appeals, 163 SCRA 587). The due execution of the
affidavit was not sufficiently established. The notary public or others who
saw that the document was signed or at least [could] confirm its recitals
[were] not presented. There was no expert testimony or competent
witness who attested to the genuineness of the questioned signatures.
Worse, [respondent] denied the genuineness of her signature and that
of her mother . . . [Respondent] testified that her mother was an illiterate
and as far as she knew her mother could not write because she had not
attended school (p. 7, ibid). Her testimony was corroborated by Ma.
Sales Bolante Basa, who said the [respondent's] mother was illiterate.

The petitioners’ allegations are untenable. Before a private document

offered as authentic can be received in evidence, its due execution
and authenticity must be proved first. 8 And before a document is
admitted as an exception to the hearsay rule under the Dead Man's
Statute, the offeror must show (a) that the declarant is dead, insane or
unable to testify; (b) that the declaration concerns a fact cognizable
by the declarant; (c) that at the time the declaration was made, he
was aware that the same was contrary to his interest; and (d) that
circumstances render improbable the existence of any motive to
falsify. 9
In this case, one of the affiants happens to be the respondent, who is
still alive and who testified that the signature in the affidavit was not hers.
A declaration against interest is not admissible if the declarant is
available to testify as a witness. 10 Such declarant should be confronted
with the statement against interest as a prior inconsistent statement.

The affidavit cannot be considered an ancient document either. An

ancient document is one that is (1) more than 30 years old, (2) found in
the proper custody, and (3) unblemished by any alteration or by any
circumstance of suspicion. 11 It must on its face appear to be genuine.
The petitioners herein failed, however, to explain how the purported
signature of Eduarda Apiado could have been affixed to the subject
affidavit if, according to the witness, she was an illiterate woman who
never had any formal schooling. This circumstance casts suspicion on its
authenticity.

Not all notarized documents are exempted from the rule on

authentication. Thus, an affidavit does not automatically become a
public document just because it contains a notarial jurat. Furthermore,
the affidavit in question does not state how the ownership of the subject
land was transferred from Sinforoso Mendoza to Margarito Mendoza. By
itself, an affidavit is not a mode of acquiring ownership.

Second Issue:

Preference of Possession

The CA ruled that the respondent was the preferred possessor under
Article 538 of the Civil Code because she was in notorious, actual,
exclusive and continuous possession of the land since 1985. Petitioners
dispute this ruling. They contend that she came into possession through
force and violence, contrary to Article 536 of the Civil Code.

We concede that despite their dispossession in 1985, the petitioners did

not lose legal possession because possession cannot be acquired
through force or violence. 12 To all intents and purposes, a possessor,
even if physically ousted, is still deemed the legal possessor. 13 Indeed,
anyone who can prove prior possession, regardless of its character,
may recover such possession. 14

However, possession by the petitioners does not prevail over that of the
respondent.1âwphi1 Possession by the former before 1985 was not
exclusive, as the latter also acquired it before 1985. The records show
that the petitioners' fat her and brother, as well as the respondent and
her mother were simultaneously in adverse possession of the land.

Before 1985, the subject land was occupied and cultivated by the
respondent's fat her (Sinforoso), who was the brother of petitioners'
father (Margarito), as evidenced by Tax Declaration No. 26425. 15 When
Sinforoso died in 1930, Margarito took possession of the land and
cultivated it with his son Miguel. At the same time, respondent and her
mother continued residing on the lot.

When respondent came of age in 1948, she paid realty taxes for the
years 1932-1948. 16 Margarito declared the lot for taxation in his name in
1953 17 and paid its realty taxes beginning 1952. 18 When he died,
Miguel continued cultivating the land. As found by the CA, the
respondent and her mother were living on the land, which was being
tilled by Miguel until 1985 when he was physically ousted by the
respondent. 19

Based on Article 538 of the Civil Code, the respondent is the preferred
possessor because, benefiting from her fat her's tax declaration of the
subject lot since 1926, she has been in possession thereof for a longer
period. On the other hand, petitioners' fat her acquired joint possession
only in 1952.

Third Issue:

Possession of Better Right

Finally, the petitioners challenge the CA ruling that "actual and physical
coupled with the exclusive and continuous possession [by respondent]
of the land since 1985" proved her ownership of the disputed land. The
respondent argues that she was legally presumed to possess the subject
land with a just title since she possessed it in the concept of owner.
Under Article 541 of the Code, she could not be obliged to show or
prove such title.

The respondent's contention is untenable. T he presumption in Article 541

of the Civil Code is merely disputable; it prevails until the contrary is
proven. 20 That is, one who is disturbed in one's possession shall, under
this provision, be restored thereto by the means established by law. 21
Article 538 settles only the question of possession, and possession is
different from ownership. Ownership in this case should be established in
one of the ways provided by law.
To settle the issue of ownership, we need to determine who between
the claimants has proven acquisitive prescription. 22

Ownership of immovable property is acquired by ordinary prescription

through possession for ten years.23 Being the sole heir of her fat her,
respondent showed through his tax receipt that she had been in
possession of the land for more than ten years since 1932. When her
father died in 1930, she continued to reside there with her mother.
When she got married, she and her husband engaged in kaingin inside
the disputed lot for their livelihood. 24

Respondent's possession was not disturbed until 1953 when the

petitioners' father claimed the land. But by then, her possession, which
was in the concept of owner — public, peaceful, and uninterrupted 25
— had already ripened into ownership. Furthermore she herself, after
her fat her's demise, declared and paid realty taxes for the disputed
land. Tax receipts and declarations of ownership for taxation, when
coupled with proof of actual possession of the property, can be the
basis of a claim for ownership through prescription. 26

In contrast, the petitioners, despite thirty-two years of farming the

subject land, did not acquire ownership. It is settled that ownership
cannot be acquired by mere occupation. 27 Unless coupled with the
element of hostility toward the true owner, 28 occupation and use,
however long, will not confer title by prescription or adverse possession.
Moreover, the petitioners cannot claim that their possession was public,
peaceful and uninterrupted. Although their father and brother arguably
acquired ownership through extraordinary prescription because of their
adverse possession for thirty-two years (1953-1985), 29 this supposed
ownership cannot extend to the entire disputed lot, but must be limited
to the portion that they actually farmed.

We cannot sustain the petitioners' contention that their ownership of the

disputed land was established before the trial court through the series of
tax declarations and receipts issued in the name of Margarito Mendoza.
Such documents prove that the holder has a claim of title over the
property. Aside from manifesting a sincere desire to obtain title thereto,
they announce the holder's adverse claim against the state and other
interested parties. 30

However, tax declarations and receipts are not conclusive evidence of

ownership. 31 At most, they constitute mere prima facie proof of
ownership or possession of the property for which taxes have been
paid. 32 In the absence of actual public and adverse possession, the
declaration of the land for tax purposes does not prove ownership. 33 In
sum, the petitioners' claim of ownership of the whole parcel has no
legal basis.1âwphi1.nêt

WHEREFORE, the Petition is DENIED and the assailed Decision and

Resolution AFFIRMED. Costs against petitioners.

SO ORDERED.
 THIRD DIVISION

G.R. No. 221071, January 18, 2017

EDDIE E. DIZON AND BRYAN R. DIZON, PETITIONERS, VS. YOLANDA VIDA P.

BELTRAN, RESPONDENT.

DECISION

REYES, J.:

Before the Court is the petition for review on certiorari,[1]

under Rule 45 of the Rules of Court, with prayer for the
issuance of a temporary restraining order and/or writ of
preliminary injunction, filed by Eddie E. Dizon (Eddie) and
Bryan James R. Dizon (Bryan) (collectively, the petitioners)
to challenge the Decision[2] rendered on January 23, 2015
and Resolution [3] issued on September 7, 2015 by the Court
of Appeals (CA) in CA-G.R. SP No. 05256-MIN. The
dispositive portion of the assailed decision reads:

WHEREFORE, the instant petition is hereby GRANTED. The

Decision dated 13 June 2012 of the Regional Trial Court of
Davao City, Branch 14, is REVERSED and SET ASIDE. The
Decision dated 11 November 2011 of the Municipal Trial
Court in Cities of Davao City, Branch 1, in Civil Case No.
21[,]755-A-10, is REINSTATED. The Regional Trial Court of
Davao City, Branch 14, is hereby ORDERED to issue a writ of
execution for the enforcement of the MTCC Decision
dated 11 November 2011.

SO ORDERED.[4]
The assailed resolution denied the petitioners' motion for
reconsideration.

Antecedents

Eddie started working as a seafarer in the 1980s. [5] He has two children,
namely, Bryan and James Christopher R. Dizon (James).[6]

Eddie and Verona Juana Pascua-Dizon (Verona) (collectively, the

Spouses Dizon) got married on March 8, 1995.[7] Verona was a
housewife.[8] She and her mother, together with Bryan and James,
resided in the house erected on a 240-square-meter lot (disputed
property) at No. 42 Mahogany Street, Nova Tierra Subdivision, Lanang,
Davao City.[9] The disputed property was covered by Transfer
Certificate of Title (TCT) No. T -351707.[10] issued in 2002. The registered
owners were "[Verona], married to [Eddie]."

In 2008, Verona filed before the Regional Trial Court (RTC) of Davao City
a petition for the issuance of Temporary and Permanent Protection
Orders against Eddie and James.[11]

On April 9, 2008, the Spouses Dizon entered into a Compromise

Agreement,[12] whereby they contemplated selling the disputed
property in the amount of not less than P4,000,000.00, which price shall
be increased by P100,000.00 for every succeeding year until the same is
finally sold. They would thereafter equally divide the proceeds from the
sale.

On September 27, 2009, Eddie left the Philippines to work on board a

ship.[13]

Sometime in October of 2009, Verona was confined at the Adventist

Hospital in Bangkal, Davao City. She was transferred to Ricardo Limso
Medical Center on November 30, 2009.[14] She died on December 8,
2009 due to cardio-respiratory arrest, with "leukonoid react ion
secondary t o sepsis or malignancy (occult )" as antecedent cause.[15]

Eddie claimed that he was unaware of Verona's hospital confinement.

On December 9, 2009, his brother Jun Dizon (Jun), called him through
the telephone and informed him about Verona's death. Eddie intended
to promptly return to the Philippines before Verona's burial. Hence, he
advised Jun to ask Verona's relatives to wait for his arrival. [16]

It took a while before Eddie's employer finally permitted him to go home.

Verona was already buried before Eddie's arrival on December 21,
2009.[17]

Thereafter, a copy of a Deed of Absolute Sale (Deed),[18] dated

December 1, 2009, was shown to Eddie. Its subject was the disputed
property conveyed to herein respondent, Yolanda Vida P. Beltran
(Vida), for P1,500,000.00.[19]

Eddie alleged that the Deed was falsified, and his and Verona's
signatures thereat were forgeries.[20]

In January of 2010, Eddie filed two complaints against Vida. One was a
civil case for nullification of the Deed, and for payment of damages
and attorney's fees.[21] The other was a criminal complaint for
falsification of public document.[22] He also caused the annotation of a
notice of lis pendens upon TCT No. T-351707.[23]

On April 6, 2010, TCT No. T -351707 was cancelled, and in its place, TCT
No. T-146-2010002236 was issued in Vida's name.[24] Eddie belatedly
discovered about the foregoing fact sometime in May 2010 after
Davao Light and Power Company cut off the electrical connection
purportedly upon the advice of the new owner of the disputed
property.[25]

Ruling of the Municipal Trial Court in Cities

In June of 2010, Vida filed before the Municipal Trial Court in Cities
(MTCC) of Davao City an action for unlawful detainer [26] against the
petitioners, James and their unnamed relatives, house helpers and
acquaintances residing in the disputed property.[27]

Vida alleged that she is the registered owner of the disputed property.
While the Deed evidencing the conveyance in her favor was executed
on December 1, 2009, Eddie pre-signed the same on April 9, 2008
before he left to work :abroad. The Spouses Dizon's respective lawyers
witnessed the signing. After Verona's death, Vida tolerated the
petitioners' stay in the disputed property. On May 18, 2010, Vida sent a
formal letter requiring the petitioners to vacate the disputed property,
but to no avail.[28]

The petitioners sought the dismissal of Vida's complaint arguing that at

the time the Deed was executed, Verona was already unconscious.
Eddie, on the other hand, could not have signed the Deed as well since
he left the Philippines on September 27, 2009 and returned only on
December 21, 2009. Further, Verona's signature appearing on the Deed
was distinctly different from those she had affixed in her petition for the
issuance of a temporary protection order and Compromise Agreement,
dated March 26, 2008 and April 9, 2008, respectively. Besides, the
purchase price of P1,500,000.00 was not in accord with the Spouses
Dizon's agreement to sell the disputed property for not less than
P4,000,000.00.[29]

On November 11, 2011, the MTCC rendered a Decision [30] directing the
petitioners and their co-defendants to turn over to Vida the possession
of the disputed property, and pay P1,000.00 monthly rent from July 12,
2010 until the said property is vacated, P20,000.00 as attorney's fees and
cost of suit. Vida was, however, ordered to pay therein defendants
P414,459.78 as remaining balance relative to the sale. [31]

The MTCC rationalized as follows:

The claim of [the petitioners] as to the falsity of the sale is a

collateral attack on the generated title itself, which can
only be impugned in a direct proceeding litigated for that
matter. The fact that [Eddie] presigned the [Deed] prior to
the death of [Verona], in the presence of counsels[,] which
remained unrebutted[,] was in fact giving consent to the
act of disposing the property to answer for any exigency or
impending situation that will arise later[,] which may or may
not be entirely connected with the medical requirements
of his ailing spouse[,] whose health condition at that time of
the execution [of the Deed] ha[d] apparently started to
deteriorate. Records show [that] [Vida] incurred a hefty
sum of One Million Eighty-Five Thousand Five Hundred and
Forty pesos and twenty-one centavos (P1,085,540.21) for
both medical and burial expenses of the deceased of
which [Eddie] failed to support in violation of t he Civil Code
on the rights and, [sic] obligation of the husband and wife
to render mutual support.

xxxx

While evidences were presented to prove the existence of

fraud in the execution of the instrument[,] the same cannot
be appreciated in this summary action for want of
jurisdiction.

x x x [A] notarized document carries the evidentiary weight

conferred upon it with respect to its due execution, and
documents acknowledged before a notary public have in
their favor the presumption of regularity. x x x.

xxxx

x x x The sole issue to be resolved is whether or not

defendants unlawfully withheld the property sold to [Vida.]

xxxx

While it is true that defendants herein filed both civil and

criminal cases for the Nullification of the [Deed] and
 Falsification alleging forgeries, the issues therein are entirely
different from this ejectment case. The criminal case, [sic]
only proves the existence of probable cause to determine
criminal culpability. The nullification tackles the validity or
invalidity of the sale on grounds of falsity.

The prevailing doctrine is that suits or actions for the

annulment of sale title or document do not abate any
ejectment action respecting the same property x x x.

xxxx

x x x [C]onsidering the conjugal nature of the property and

the subsequent dissolution of the conjugal partnership
upon the death of [Verona] on December 08, 2009, with
the execution of conveyance in favor of [Vida], this Court
deemed it equitable and just for [Vida], to return to [Eddie],
[sic] the remaining balance of the sale representing the net
amount less the total actual medical and burial expenses
of [Verona] from the proceeds of the sale, in the amount of
FOUR HUNDRED, FOURTEEN THOUSAND FOUR HUNDRED,
FIFTY-NINE PESOS AND SEVENTY-NINE centavos (P414,459.79)
in the absence of evidence to that effect and for reasons
of equity.[32]

Ruling of the RTC

The petitioners filed an appea1 [33] before the RTC. During its pendency,
Vida filed a motion for the issuance of a writ of execution. On June 13,
2012, the RTC reversed the MTCC ruling, dismissed the complaint for
unlawful detainer and denied Vida's motion for the issuance of a writ of
execution.[34] The RTC explained that:

Under Republic Act No. 7691 expanding the jurisdiction of

the Metropolitan Trial Courts, [MTCCs], Municipal Trial
Courts, and Municipal Circuit Trial Courts, amending Batas
Pambansa [Blg.] 129, otherwise known as the "Judiciary
Reorganization Act of 1980,["] paragraph 2, of Section 33
therein provides that the court of first level has "x-x-
Exclusive Original jurisdiction over cases of forcible entry
and unlawful detainer: Provided, that when, in such cases,
the defendant raises the question of ownership in his
pleadings and the question of possession cannot he
resolved without deciding the issue of ownership[, the latter]
shall be resolved only to determine the issue of
possession[.]["] x x x
In the pleadings of the [petitioners] filed before the court a
quo, and even in their memorandum on appeal, they
vigorously raise[d] the question of ownership of [Vida]
based on the alleged notarized [Deed] signed by [Eddie]
in favor of [Vida] where the latter derived her so-called
ownership over the subject premises[.] Truly indeed upon
examination by any sensible man[,] it would reveal that the
signature[s] of [the Spouses Dizon] appearing at the
bottom of the alleged Deed [were] falsified x x x. Thus, a
document challenged by a part y in litigation as falsified
may be proved without resorting to an opinion of
handwriting experts. x x x.

In another case[,] the Supreme Court held that: "x-x- A

finding of forgery does not entirely depend on the
testimony of handwriting experts. Although it is useful[,] the
judge still exercises independent judgment on the issue of
authenticity of the signatures under scrutiny by comparing
the alleged forged signature and the authentic and
genuine signatures of the person whose signature is
theorized upon to have been forged. x x x

This court x x x took occasion in comparing and examining

the signature of [Verona] in the [Deed] x x x vis-a-vis her
signature appearing in the compromise agreement
executed [with Eddie] x x x[.] [The comparison] lucidly
showed that the signatures of [Verona] [were] x x x very
different from each other and [the differences are]
detectable by a human eye. x x x.

xxxx

Another thing that caught the curiosity of this court is the

stipulation contained in the compromise agreement x x x
wherein [the Spouses Dizon] agreed x x x that the "x-x- net
selling price of the said conjugal property should be sold
not lower than FOUR MILLION (P4,000,000.00) PESOS for the
year 2008 x x x."

xxxx

x x x [T]here was never proof adduced that the

compromise agreement adverted to was rescinded or
modified by the [Spouses Dizon]. To the view of this Court[,]
the consideration of the said [Deed] x x x has an indicia of
 fraud x x x [and] the signature[s] of the [Spouses Dizon] as
falsified. [A] [f]alsified document cannot give right or
ownership to a party who uses it.

xxxx

x x x To justify an action for unlawful detainer[,] the

permission or tolerance must have been present at the
beginning of the possession[.]-x-x-x- Since the complaint
did not satisfy the jurisdictional requirement of a valid
cause for unlawful detainer, the [MTCC] had no jurisdiction
over the case. x x x.[35] (Emphasis and underlining in the
original)

Ruling of the CA

Vida assailed the foregoing via a petition for review, which the CA
granted in the herein assailed decision and resolution. The CA's reasons
are cited below:

[Vida] was able to sufficiently allege and consequently

established the requisites of unlawful detainer.

First , [Vida] alleged that she is the registered owner of the

[disputed] property and she merely tolerated the
continuous possession of the [petitioners] [of] the [disputed]
property after she purchased it and had it titled in her
name. Second, [the petitioners'] possession became illegal
upon notice by [Vida] to [the petitioners] of the termination
of the [petitioners'] right of possession as shown by the
Notice to Vacate dated 18 May 2010 sent by [Vida's]
counsel to [the petitioners]. Third, [the petitioners] refused
to vacate the [disputed] property x x x thereby depriving
[Vida] of the enjoyment thereof. And fourth, [Vida]
instituted the complaint dated 03 June 2010 for unlawful
detainer within one (1) year from demand to vacate the
premises. x x x.

xxxx

x x x While the said [Deed] was questioned by [the

petitioners] for being a nullity in a separate case, yet, it
should be emphasized that the determination of the
validity or the nullity of the [Deed] should be properly
threshed out in that separate proceeding and not in the
summary action for unlawful detainer. x x x.
xxxx

x x x Nothing is more settled than the rule that "[i]n an

unlawful detainer case, the sole issue for resolution is the
physical or material possession of the property involved,
independent of any claim of ownership by any of the
parties. However, where the issue of ownership is raised, the
courts may pass upon the issue of ownership in order to
determine who has the right to possess the property. The
Court stresses, however, that this adjudication is only an
initial determination of ownership for the purpose of settling
the issue of possession, the issue of ownership being
inseparably linked thereto. The lower court's adjudication
of ownership in the ejectment case is merely provisional
and would not bar or prejudice an action between the
same parties involving title to the property. It is, therefore,
not conclusive as to the issue of ownership, which is the
subject matter of a separate case for annulment of [the
Deed] filed by [the petitioners].

x x x [T]he RTC[,] in resolv ing the issue of possession in the

unlawful detainer case[,] has not only provisionally passed
upon the issue of ownership of the [disputed] property but it
in fact made a determinative and conclusive finding on
the ownership thereof, contrary to the settled rule that in
[an] unlawful detainer case, the only issue to be resolve[d]
by the court is the physical or material possession of the
property involved x x x.

x x x [W]hile the Court may make provisional determination

of ownership in order to determine who between [Vida]
and [the petitioners] had the better right to possess the
property, yet, the court is proscribed from making a
conclusive finding on this issue. x x x [T]hc RTC has already
made a preemptive finding on the validity or invalidity of
the document, [but] the resolution thereof properly
pertains to a separate proceeding pending before it in a
separate case. x x x.

xxxx

x x x [T]his Court agrees with the contention of [Vida] that

the RTC:'s pronouncement that the signatures in the [Deed]
were forged and [Vida's] title issued pursuant thereto is void
is a collateral attack on [Vida's] title which violates the
 [principle of] indefeasibility of the Torrens title. x x x

xxxx

Verily, unless and until [Vida's] title over the [disputed]

property is annulled in a separate proceeding instituted by
[the petitioners], the same is valid and [Vida] has the right
to possess the subject property, being an attribute of her
ownership over it. x x x.

xxxx

x x x [T]o stay the immediate execution of judgment in

ejectment proceedings, the defendant -appellant must: (a)
perfect his appeal, (b) file a supersedeas bond, and (c)
periodically deposit the rentals falling due during the
pendency of the appeal.

x x x [T]he supersedeas bond was paid by [the pet itioners]

only on 02 May 2012. x x x [T]he bond filed by [the
petitioners] in order to stay the immediate execution of the
MTCC Decision was filed out of time as it was not filed
within the period to appeal.

x x x [T]he failure of the [petitioners] in this case to comply

with any of the conditions provided under Section 19, Rule
70 of the Rules of Court is a ground tor the out right
execution of the judgment, the duty of the court in this
respect being "ministerial and imperative." x x x.

Thus, as the supersedeas bond was filed out of time or

beyond the period to appeal, [Vida's] motion for
immediate execution should have been acted upon by
the RTC and the writ of execution should have been issued
as a matter of right.[36] (Citations omitted and italics in the
original)
The CA, through the herein assailed resolution,[37] denied the petitioners'
motion for reconsideration.[38]

Issues

The instant petition is anchored on the issues of whether or not:

(1) Vida has a cause of action for unlawful detainer against the
petitioners considering that the Deed she relied upon in filing her
 complaint was falsified, hence, null; and

the RTC conectly ruled that in an unlawful detainer case, the MTCC
(2)
can resolve the issue of ownership.[39]

In support thereof, the petitioners point out that relative to the

falsification case filed by Eddie against Vida, the Office of the Davao
City Prosecutor issued a Resolution,[40] dated June 11, 2010, stating that
no expert eye is needed t o ascertain that the signatures appearing in
the Deed were different from the standard signatures of the Spouses
Dizon. Further, on September 20, 2010, another resolution [41] was issued
finding probable cause to indict Vida for the crime of falsification of
public documents. Thereafter, the MTCC issued a Warrant of Arrest [42]
against Vida.

The petitioners also insist that no Deed was executed conveying the
disputed propetiy in Vida's favor. When the Deed was purportedly
executed on December 1, 2009, Verona was already unconscious,
while Eddie was abroad. Having been simulated, the Deed was void
and inexistent. It produced no effect and cannot create, modify or
extinguish a juridical relation. lienee, Vida had no right to transfer the
title in her name using the falsified Deed. Perforce, her complaint for
unlawful detainer against the petitioners had no leg to stand on and
should be dismissed.

Citing Spouses De Guzman v. Agbagala,[43] the petitioners c1aim that

the rule on non-collateral attack of a Torrens title does not apply in a
case where the title is void from the start. An action to declare the
nullity of a void title does not prescribe and is susceptible to direct, as
well as to collateral attack.[44]

Anent the belated posting of the supersedeas bond, the petitioners

stress that fault cannot be ascribed to them. They waited for the MTCC's
order approving and fixing the amount. When the order was finally
issued, the petitioners were required to post the bond before the RTC
and deposit the monthly rental as well. The petitioners complied before
the RTC rendered its Decision dated June 13, 2012. [45]

As counterclaims, the petitioners impute malice and bad faith against

Vida in filing the complaint for unlawful detainer. The petitioners, thus,
pray for the award of P1,000,000.00 as moral damages, P500,000.00 as
exemplary damages, P50,000.00 as attorney's fees, and P2,000.00 for
each appearance of their counsel.[46]

In Vida's Comment,[47] she argues that the petitioners' claim of forgery is

yet to be proven in court by clear, positive and convincing evidence.
Having been notarized, the Deed enjoys the presumption of due
execution, and shall remain valid unless annulJed in a proper
proceeding. Besides, the allegations of forgery and nullity of the Deed
are immaterial in a summary action for unlawful detainer. Allowing the
foregoing claims to be litigated amounts to a collateral attack on Vida's
title.

Vidal also points out that the petitioners paid the su,fsersedeas bond
only on May 2, 2012, beyond the period to perfect an appeal.[48]

Ruling of the Court

On matters of procedure

While the petitioners explicitly raise only two substantive issues, in the
body of the petition, they discuss procedural matters anent their
payment of the supersedeas bond and an alleged error on the part of
the CA in concluding that the RTC should have issued a writ of
execution relative to the MTCC's decision in Vida's favor.[49]

The petitioners admit that they posted the supersedeas bond beyond
the period to perfect an appeal, but claim that it was the MTCC, which
belatedly fixed the amount. Pending the appeal they had filed before
the RTC, they promptly posted the bond after the amount was
determined by the MTCC.[50]

In Spouses Chua v. CA,[51] the Court ruled that:

Petitioners need not require the MTC to fix the amount of

the supersedeas bond. They could have computed this
themselves. As early as 1947, we have held in Aylon vs.
Jugo and De Pablo that the supersedeas bond is
equivalent to the amount of rentals, damages and
coststated in the judgment.[52]
If the cited case were to be applied, the petitioners' failure to post the
supersedes bond within the allowable period shall result in the
immediate execution of the MTCC judgment. Nonetheless, in Cit y of
Naga v. Hon. Asuncion, et al.,[53] the Court has carved exceptions to
immediate execution of judgmentin ejectment cases, viz.:
 Petitioner herein invokes seasonably the exceptions to
immediate execution of judgments in ejectment cases
cited in Hualam Construction and Dev't. Corp. v. Court of
Appeals and Laurel v. Abalos, thus:

Where supervening events (occurring

subsequent to the judgment) bring about a
material change in the situation of the parties
which makes the execution inequitable, or
where there is no compelling urgency for the
execution because it is not justified by the
prevailing circumstances, the court may stay
immediate execution of the judgment .
Noteworthy, the foregoing exceptions were made in
reference to Section 8, Rule 70 of the old Rules of Court
which has been substantially reproduced as Section 19,
Rule 70[54] of the 1997 Rules of Civil Procedure. Therefore,
even if the appealing defendant was not able to file a
supersedeas bond, and make periodic deposits to the
appellate court, immediate execution of the MTC decision
is not proper where the circumstances of the case fall
under any of the above-mentioned exceptions. x x x.[55]
(Citations omitted and underlining ours)

In Laurel, et al. v. Hon. Abalos, et c., et al.,[56] therein respondent filed an

action for reformation of the deed of sale against therein petitioners
pending the appeal of the unlawful detainer case before the RTC. The
RTC thereafter denied therein petitioners' motion for the issuance of a
writ of execution relative to the MTCC judgment, and required therein
respondent to post a supersedeas bond. According to the Court, the
peculiar environmental circumstances obtaining in the case justify the
non-immediate execution of the MTCC's judgment pending appeal.
The Court further expounded as follows:

[T]his Court took pains at length to explain that this

provision (regarding immediate execution of the judgment
of inferior courts in cases of unlawful detainer) can be
availed of only if no question of title is involved and the
ownership or the right to the possession of the property is an
admitted fact. Through Mr. Justice Labrador, this Court said
in De los Reyes vs. Cast ro, et al.:

.... The provision for the immediate execution

of a judgment of the justice of the peace
court in actions of unlawful detainer under
Section 8 of Rule 72 of the [old] Rules of Court,
 is not applicable to an action of detainer like
the present, where there is no immediate
urgency for the execution because it is not
justified by the circumstances. This view is
based on the history of the action of forcible
entry. This action originated in the English
common law where it was originally in the form
of a criminal proceeding whereby lands or
properties seized through the use of force
could immediately be returned. x x x.

It is the opinion of the writer that inasmuch as

the propet1y now subject of litigation was
originally sold only with right to repurchase to
the plaintiff, so that the plaintiff was not really
and originally the owner and possessor of the
property, and since there are reasonable
grounds to believe that the contract entered
into between them was not one of lease but
one of loan with mortgage of the property, the
right of the plaintiff to the immediate
possession of the property is not apparent,
clear or conclusive, and neither should his right
to the immediate execution of the property
[be] allowed until opportunity to settle the
question of ownership is had. In other words,
the writer of the opinion holds that while
Section 8 of Rule 72 is applicable also in cases
of unlawful detainer, the immediate execution
it provides for may be availed of only if no
question of title is involved and the ownership
and the right to the possession of the property
is an admitted fact .
xxxx

Where supervening events (occurring subsequent to the

judgment) bring about a material change in the situation
of the parties which makes the execution inequitable, or
where there is no compelling urgency for the execution
because it is not justified by the prevailing circumstances,
the court may stay immediate execution of the judgment .

The assertion by Laput of "ownership" of the house she is

occupying, the appeal pending in the [CA] from the
decision in Civil Case 1517 which declared null and void
 from the beginning the deed of sale in favor of the
petitioners, the latter's unexplained silence in the face of
the manifestation filed by Laput informing this Court of the
supervening occurrences, and their failure to submit their
comment as required by this Court, are strong and
sufficient additional reasons, cumulatively, to justify the
dismissal of the present petition.[57] (Citations, emphasis and
italics omitted, and underlining ours)

By analogy, in the unlawful detainer case from which the instant

petition arose, Eddie was originally a co-owner of the disputed property,
and he remains in possession thereof. Vida, on the other, is not even a
resident of Davao City.[58] Moreover, prior to Vida's filing of the unlawful
detainer case, Eddie had already instituted actions for nullification of
the Deed and falsification of public documents. The Office of the
Davao City Prosecutor had likewise made a preliminary determination
of probable cause that forgery was committed. Eddie, thus, insists that
no valid conveyance was made by Verona to Vida. In the mind of the
Court, the foregoing are persuasive reasons justifying the
non-immediate execution of the MTCC judgment despite the
petitioners' belated posting of the supersedeas bond. Hence, the CA
erred in declaring that the RTC improperly denied Vida's motion for the
issuance of a writ of execution pending appeal.

On substantive issues

Being interrelated, the two substantive issues raised shall be discussed

jointly. Essentially, the petitioners allege that the MTCC should have
dismissed Vida's complaint for unlawful detainer for lack of basis as the
Deed she relied upon is falsified and void. It is also claimed that the CA
erred in not upholding the RTC's ruling that the latter can take
cognizance of the issue of ownership in an unlawful detainer case.

The Court finds merit in the petitioners' arguments.

In Consolacion D. Romero and Rosario S.D. Domingo v. Engracia D.

Singson,[59] where there were similar allegations of forgery and the issue
of ownership was raised in the ejectment case, the Court pronounced:

In arriving at its pronouncement, the CA passed upon the

issue or claim of ownership, which both parties raised. While
the procedure taken is allowed - under Section 16, Rule
70[60] of the 1997 Rules of Civil Procedure, the issue of
ownership may be resolved only to determine the issue of
possession - the CA nonetheless committed serious and
patent error in concluding that based solely on
respondent's TCT 12575 issued in her name, she must be
considered the singular owner of the subject property and
thus entitled to possession thereof - pursuant to the
principle that "the person who has Torrens Title over a land
is entitled to possession thereof." Such provisional
determination of ownership should have been resolved in
petitioners' favor.

When the deed of sale in favor of respondent was

purportedly executed by the parties thereto and notarized
on June 6, 2006, it is perfectly obvious that the signatures of
the vendors therein, Macario and Felicidad, were forged.
They could not have signed the same, because both were
by then, long deceased: Macario died on Febmary 22,
1981, while Felicidad passed away on September 14, 1997.
This makes the June 6, 2006 deed of sale null and void;
being so, it is "equivalent to nothing; it produces no civil
effect; and it does not create, modify or extinguish a
juridical relation."

And while it is true that respondent has in her favor a

Torrens title ovet the subject property, she nonetheless
acquired no right or title in her favor by virtue of the null
and void June 6, 2006 d eed. "Verily, when the insttument
presented is forged, even if accompanied by the owner's
duplicate certificate of title, the registered owner does not
thereby lose his title, and neither does the assignee in the
forged deed acquire any right or title to t he property."

xxxx

Insofar as a person who fraudulently obtained

a property is concerned, the registration of the
property in said person's name would not be
sufficient to vest in him or her the title to the
property. A certificate of title merely confirms
or records title already existing and vested. The
indefeasibility of the Torrens title should not be
used as a means to perpetrate fraud against
the rightful owner of real property. Good faith
must concur with registration because,
otherwise, registration would be an exercise in
futility. A Torrens title does not furnish a shield
for fraud, notwithstanding the long-standing
rule that registration is a constructive notice of
 title binding upon the whole world. The legal
principle is that if the registration of the land is
fraudulent, the person in whose name the land
is registered holds it as a mere trustee.
Since respondent acquired no right over the subject
property, the same remained in the name of the original
registered owners, Macario and Felicidad. Being heirs of
the owners, petitioners and respondent thus became, and
remain co-owners - by succession - of the subject property.
As such, petitioners may exercise all attributes of ownership
over the same, including possession whether de facto or
dejure; respondent thus has no right to exclude them from
this right through an action for ejectment.

With the Court's detennination that respondent's title is null

and void, the matter of direct or collateral attack is a
foregone conclusion as well. "An action to declare the
nullity of a void title does not prescribe and is susceptible to
direct, as well as to collateral, attack;" petitioners wery not
precluded from guestioning the validity of respondent's title
in the ejectment case.[61] (Citations and emphasis omitted
and underlining ours)

In the case at bar, when the Deed was executed on December 1, 2009,
Eddie claimed that he was abroad while Verona was already
unconscious. Vida did not directly refute these allegations and instead
pointed out that the Deed was pre-signed in April of 2008. The foregoing
circumstances reduced the Deed into the category of a private
instrument as can be drawn from the Court's discussion in Adelaida
Meneses (deceased) v. Vent urozo,[62] viz.:

As notarized documents, [Deeds] carry evidentiary weight

conferred upon them with respect to their due execution
and enjoy the presumption of regularity which may only be
rebutted by evidence so clear, strong and conyincing as to
exclude all controversy as to falsity. The presumptions that
attach to notarized documents can be affirmed only so
long as it is beyond dispute that the notarization was
regular. A defective notarization will strip the document of
its public character and reduce it to a private instrument.
Consequently, when there is a defect in the notarization of
a document, the clear and convincing evidentiary
standard normally attached to a duly-notarized document
is dispensed with, and the measure to test the validity of
 such document is preponderance of evidence.[63]
(Citations omitted and underlining ours)
Further, in Dela Rama, et al. v. Papa, et al.,[64] the Court elucidated that:

Papas['] admissions, refreshing in their self-incriminatory

candor, beat legal significance. With respect to deeds of
sale or conveyance, what spells the difference between a
public document and a private document is the
acknowledgment in the former that the parties
acknowledging the document appear before the notary
public and specifically manifest under oath that they are
the persons who executed it, and acknowledge that the
same are their free act and deed. x x x

xxxx

The presumptions that attach to notarized documents can

be affirmed only so long as it is beyond dispute that the
notarization was regular. We cannot ascribe that
conclusion at bar to the deed of sale. Respondent failed to
confirm before the RTC that he had actually appeared
before the notary public, a bare minimum requirement
under Public Act No. 2103. Such defect will not ipso fact o
void the deed of sale. However, it eliminates the
presumptions that are carried by notarized public
documents and subject the deed of sale to a different
level of scrutiny than that relied on by the [CA]. This
consequence is with precedent. In Tigno v. Sps. Aquino,
where the public document in question had been
notarized by a judge who had no authority to do so, the
Court dispensed with the clear and convincing evidentiary
standard normally attached to duly notarized documents,
and instead applied preponderance of evidence as the
measure to test the validity of that document .[65] (Citations
omitted and underlining ours)
In the instant petition, Vida impliedly admits the irregularity of the Deed's
notarization as both of the vendors were not personally present.
Consequently, due execution can no longer be presumed. Besides, the
extant circumstances surrounding the controversy constitute
preponderant evidence suggesting that forgery was committed. Eddie
promptly filed a criminal case for falsification of documents and a civil
case to nullify the Deed. Later, the Office of the Davao City Prosecutor
found probable cause to indict Vida for falsification. Consequently, the
issue of ownership cannot be disregarded in the unlawful detainer case.
It bears stressing though that while the RTC aptly resolved the issue of
ownership, it is at best preliminary and shall not be determinative of the
outcome of the two other cases filed by Eddie against Vida.

Other matters

The Court observes that the MTCC ruling, which the CA affirmed, is
based partly on equitable grounds. Notably, the MTCC referred to
Verona's medical expenses of P1,085,540.21, which Vida had
shouldered.[66] The Court commiserates with Vida, if indeed she remains
unpaid by Eddie for Verona's medical and burial expenses. However, a
creditor cannot resort to procedural shortcuts to collect in kind for sums
of money owed by a debtor.

In sum, the Court agrees with the RTC that the dismissal of Vida's
complaintifor unlawful detainer is in order.

WHEREFORE, the instant petition is GRANTED. The Decision and

Resolution, dated January 23, 2015 and September 7, 2015, respectively,
of the Court of Appeals in CA-G.R. SP No. 05256-MIN, are SET ASIDE. The
Decision dated June 13, 2012 of the Regional Trial Court of Davao City,
Branch 14, in Civil Case No. 34,450-2012, is REINSTATED. Consequently,
Yolanda Vida P. Beltran's complaint for unlawful detainer is DISMISSED.

SO ORDERED.
 FIRST DIVISION

G.R. No. 173021 October 20, 2010

DELFIN LAMSIS, MAYNARD MONDIGUING, JOSE VALDEZ, JR. and Heirs of

AGUSTIN KITMA, represented by EUGENE KITMA, Petitioners,
vs.
MARGARITA SEMON DONG-E, Respondent.

DECISION

DEL CASTILLO, J.:

There is laches when a party is aware, even in the early stages of the
proceedings, of a possible jurisdictional objection, and has every
opportunity to raise said objection, but fails to do so, even on appeal.

This is a Petition for Review 1 assailing the March 30, 2006 Decision 2 of the
Court of Appeals (CA) in CA-G.R. CV No. 78987 as well as its May 26,
2006 Resolution 3 which denied petitioners’ motion for reconsideration.
The dispositive portion of the assailed Decision reads:

WHEREFORE, in view of the foregoing, the appeal is hereby DISMISSED

for lack of merit and the judgment dated January 8, 2003 of the
Regional Trial Court of Baguio City in Civil Case No. 4140-R is AFFIRMED in
toto.

SO ORDERED.4

Factual antecedents

This case involves a conflict of ownership and possession over an

untitled parcel of land, denominated as Lot No. 1, with an area of
80,736 square meters. The property is located along Km. 5 Asin Road,
Baguio City and is part of a larger parcel of land with an area of 186,090
square meters. While petitioners are the actual occupants of Lot No. 1,
respondent is claiming ownership thereof and is seeking to recover its
possession from petitioners.

According to respondent Margarita Semon Dong-E (Margarita), her

family’s ownership and occupation of Lot No. 1 can be traced as far
back as 1922 to her late grandfather, Ap-ap.5 Upon Ap-ap’s death, the
property was inherited by his children, who obtained a survey plan in
1964 of the 186,090-square meter property, which included Lot No.
1.6 On the same year, they declared the property for taxation purposes
in the name of "The Heirs of Ap-ap."7 The 1964 tax declaration bears a
notation that reads: "Reconstructed from an old Tax Declaration No.
363 dated May 10, 1922 per true of same presented." 8

The heirs of Ap-ap then executed, for a ₱500.00 consideration, a Deed

of Quitclaim9 on February 26, 1964 in favor of their brother Gilbert
Semon (Margarita’s fat her).

Sometime between 1976 and 1978,10 Gilbert Semon together with his
wife Mary Lamsis, allowed his in-laws Manolo Lamsis and Nancy
Lamsis-Kitma, to stay on a portion of Lot No. 1 together with their
respective families.11 They were allowed to erect their houses, introduce
improvements, and plant trees thereon. When Manolo Lamsis and
Nancy Lamsis-Kitma died sometime in the 1980s, their children,
petitioners Delfin Lamsis (Delfin) and Agustin Kitma (Agustin), took
possession of certain portions of Lot No. 1. Delfin possessed 4,000 square
meters of Lot No. 1, while Agustin occupied 5,000 square meters
thereof.12 Nevertheless, the heirs of Gilbert Semon tolerated the acts of
their first cousins.

When Gilbert Semon died in 1983,13 his children extrajudicially

partitioned the property among themselves and allotted Lot No. 1
thereof in favor of Margarita.14 Since then, Margarita allegedly paid the
realty tax over Lot No. 1 15 and occupied and improved the property
together with her husband; while at the same time, tolerating her first
cousins’ occupation of portions of the same lot.

This state of affairs changed when petitioners Delfin and Agustin

allegedly began expanding their occupation on the subject property
and selling portions thereof.16 Delfin allegedly sold a 400-square meter
portion of Lot No. 1 to petitioner Maynard 17 Mondiguing (Maynard)
while Agustin sold another portion to petitioner Jose Valdez (Jose). 18

With such developments, Margarita filed a complaint 19 for recovery of

ownership, possession, reconveyance and damages against all four
occupants of Lot No. 1 before the Regional Trial Court (RTC) of Baguio
City. The case was docketed as Civil Case No. 4140-R and raffled to
Branch 59. The complaint prayed for the annulment of the sales to
Maynard and Jose and for petitioners to vacate the portions of the
property which exceed the areas allowed to them by
Margarita.20 Margarita claimed that, as they are her first cousins, she is
willing to donate to Delfin and Agustin a portion of Lot No. 1, provided
that she retains the power to choose such portion.21
Petitioners denied Margarita’s claims of ownership and possession over
Lot No. 1. According to Delfin and Agustin, Lot No. 1 is a public land
claimed by the heirs of Joaquin Smith (not parties to the case).22 The
Smiths gave their permission for Delfin and Agustin’s parents to occupy
the land sometime in 1969 or 1970. They also pre sented their neighbors
who testified that it was Delfin and Agustin as well as their respective
parents who occupied Lot No. 1, not Margarita and her parents.

Delfin and Agustin also assailed the muniments of ownership presented

by Margarita as fabricated, unauthenticated, and invalid. It was
pointed out that the Deed of Quitclaim, allegedly executed by all of
Ap-ap’s children, failed to include two – Rita Bocahan and Stewart
Sito.23 Margarita admitted during trial that Rita Bocahan and Stewart
Sito were her uncle and aunt, but did not explain why they were
excluded from the quitclaim.

According to Maynard and Jose, Delfin and Agustin were the ones
publicly and openly in possession of the land and who introduced
improvements thereon. They also corroborated Delfin and Agustin’s
allegation that the real owners of the property are the heirs of Joaquin
Smith.24

In order to debunk petitioners’ claim that the Smiths owned the subject
property, Margarita presented a certified copy of a Resolution from the
Land Management Office denying the Smiths’ application for
recognition of the subject property as part of their ancestral land. 25 The
resolution explains that the application had to be denied because the
Smiths did not "possess, occupy or utilize all or a portion of the property x
x x. The actual occupants (who were not named in the resolution)
whose improvements are visible are not in any way related to the
applicant or his co-heirs."26

To bolster her claim of ownership and possession, Margarita introduced

as evidence an unnumbered resolution of the Community Special Task
Force on Ancestral Lands (CSTFAL) of the Department of Environment
and Natural Resources (DENR), acting favorably on her and her siblings’
ancestral land claim over a portion of the 186,090-square meter
property.27 The said resolution states:

The land subject of the instant application is the ancestral land of the
herein applicants. Well-established is the fact that the land treated
herein was first declared for taxation purposes in 1922 under Tax
Declaration No. 363 by the applicant’s grandfather Ap-Ap (one name).
Said application was reconstructed in 1965 after the original got lost
during the war. These tax declarations were issued and recorded in the
Municipality of Tuba, Benguet, considering that the land was then
within t he territorial jurisdiction of the said municipality. That upon the
death of declarant Ap-Ap his heirs x x x transferred the tax declaration
in their name, [which tax declaration is] now with the City assessor’s
office of Baguio.

The land consisting of four (4) lots with a total area of ONE HUNDRED
EIGHTY SIX THOUSAND NINETY (186,090) SQUARE METERS, is covered by
Psu-198317 duly approved by the Director of Lands on October 4, 1963
in the name of Ap-Ap (one name). In 1964, the same land was the
subject of a petition filed by Gilbert Semon, as petitioner, before the
Court of First Instance of the City of Baguio in the reopening of Judicial
Proceedings under Civil Case No. 1, GLRO Record No. 211 for the
registration and the issuance of Certificate of Title of said land. The land
registration case was however overtaken by the decision of the
Supreme Court declaring such judicial proceedings null and void
because the courts of law have no jurisdiction.

It has been sufficiently substantiated by the applicants that prior to and

at the time of the pendency of the land registration case and
henceforth up to and including the present, the herein applicants by
themselves and through their predecessor -in-interest have been in
exclusive, continuous, and material possession and occupation of the
said parcel of land mentioned above under claim of ownership,
devoting the same for residential and agricultural purposes. Found are
the residential houses of the applicants as well as those of their close
relatives, while the other areas planted to fruit trees, coffee and
banana, and seasonal crops. Also noticeable therein are permanent
stone and earthen fences, terraces, clearings, including irrigation
gadgets.

On the matter of the applicant[s’] indiguinity [sic] and qualifications,

there is no doubt that they are members of the National Cultural
Communities, particularly the Ibaloi tribe. They are the legitimate
grandchildren of Ap-Ap (one name) who lived along the Asin Road
area. His legal heirs are: Orani Ap-Ap, married to Calado Salda; Rita
Ap-Ap, married to Jose Bacacan; Sucdad Ap-Ap, married to Oragon
Wakit; and Gilbert Semon, a former vice-mayor of Tuba, Benguet, [who]
adopted the common name of their father Semon, as it is the
customary practice among the early Ibalois. x x x

On the matter regarding the inheritance of the heirs of Ap-Ap, it is

important to state [that] Gilbert Semon consolidated ownership thereof
and became the sole heir in 1964, by way of a "Deed of Quitclaim"
executed by the heirs in his favor. As to the respective share of the
applicants[’] co-heirs, the same was properly adjudicated in 1989 with
the execution of an "Extrajudicial Settlement/ Partition of Estate with
Waiver of Rights."

With regard to the overlapping issue, it is pertinent to state that

application No. Bg-L-066 of Thomas Smith has already been denied by
us in our Resolution dated November 1997. As to the other adverse
claims therein by reason of previous conveyances in favor of third
parties, the same were likewise excluded resulting in the reduction of
the area originally applied from ONE HUNDRED EIGHTY SIX THOUSAND
NINETY (186,090) SQUARE METERS, more or less to ONE HUNDRED TEN
THOUSAND THREE HUNDRED FORTY TWO (110,342) SQUARE METERS,
more or less. Considering the foregoing developments, we find no legal
and procedural obstacle in giving due course to the instant
application.

Now therefore, we hereby [resolve] that the application for Recognition

of Ancestral Land Claim filed by the Heirs of Gilbert Semon, represented
by Juanito Semon, be grant ed [and] a Certificate of Ancestral Land
Claim (CALC) be issued to the herein applicants by the Secretary,
Department of Environment and Natural Resources, Visayas Avenue,
Diliman, Quezon City, through the Regional Executive Director,
DENR-CAR, Diego Silang Street, Baguio City. The area of the claim
stated herein above is however subject to the outcome of the final
survey to be forthwith executed.

Carried this 23rd day of June 1998.28

The resolution was not signed by two members of the CSTFAL on the
ground that the signing of the unnumbered resolution was overtaken by
the enactment of the Republic Act (RA) No. 8371 or the Indigenous
People’s Rights Act of 1997 (I PRA). The IPRA removed the authority of
the DENR to issue ancestral land claim certificates and transferred the
same to the National Commission on Indigenous Peoples (NCIP). 29 The
Ancestral Land Application No. Bg-L-064 of the Heirs of Gilbert Semon
was transferred to the NCIP, Cordillera Administrative Region, La
Trinidad, Benguet and re-docketed as Case No. 05-RHO-CAR-03.30 The
petitioners filed their protest in the said case before the NCIP. The same
has been submitted for resolution.

Ruling of the Regional Trial Court 31

After summarizing the evidence presented by both parties, the trial
court found that it preponderates in favor of respondent’s long-time
possession of and claim of ownership over the subject property. 32 The
survey plan of the subject property in the name of the Heirs of Ap-ap
executed way back in 1962 and the tax declarations thereafter issued
to the respondent and her siblings all support her claim that her family
and their predecessors-in-interest have all been in possession of the
property to the exclusion of others. The court likewise gave credence to
the documentary evidence of the transfer of the land from the Heirs of
Ap-ap to respondent’s father and, eventually to respondent herself. The
series of transfers of the property were indications of the respondent’s
and her predecessors’ interest over the property. The court opined that
while these pieces of documentary evidence were not conclusive
proof of actual possession, they lend credence to respondent’s claim
because, "in the ordinary course of things, persons will not execute legal
documents dealing with real property, unless they believe, and have
the basis to believe, that they have an interest in the property subject of
the legal documents x x x."33

In contrast, the trial court found nothing on record to substantiate the

allegations of the petititioners that they and their parents were the
long-time possessors of the subject property. Their own statements
belied their assertions. Petitioner Maynard and Jose both admitted that
they could not secure title for the property from the Bureau of Lands
because there were pending ancestral land claims over the
property.34 Petitioner Agustin’s Townsite Sales Application over the
property was held in abeyance because of respondent’s own claim,
which was eventually favorably considered by the CSTFAL.35

The dispositive portion of the trial court’s Decision reads:

WHEREFORE, premises considered, judgment is hereby rendered in

favor of the [respondent] and against the [petitioners] –

(1) Declaring the transfer of a portion of Lot 1 of PSU 198317 made by

the [petitioner] Delfin Lamsis to Menard Mondiguing and Jose Valdez, Jr.
null and void;

(2) Ordering the [petitioners] Delfin Lamsis, Agustin Kitma, Menard

Mondiguing and Jose Valdez, Jr., to vacate the area they are presently
occupying that is within Lot 1 of PSU 198317 belonging to the
[respondent] and to surrender possession thereof to the [respondent];
(3) To pay [respondent] attorney’s fees in the amount of ₱10,000.00;
and

(4) To pay the costs of suit.

SO ORDERED.36

It appears that no motion for reconsideration was filed before the trial
court. Nevetheless, the trial court issued an Order 37 allowing the
petitioners’ Notice of Appeal.38

Ruling of the Court of Appeals39

The sole issue resolved by the appellate court was whether the trial
court erred in ruling in favor of respondent in light of the adduced
evidence. Citing the rule on preponderance of evidence, the CA held
that the respondent was able to discharge her burden in proving her
title and interest to the subject property. Her documentary evidence
were amply supported by the testimonial evidence of her witnesses.

In contrast, petitioners only made bare allegations in their testimonies

that are insufficient to overcome respondent’s documentary evidence.

Petitioners moved for a reconsideration 40 of the adverse decision but

the same was denied.

Hence this petition, which was initially denied for failure to show that the
CA committed any reversible error.41 Upon petitioners’ motion for
reconsideration,42 the petition was reinstated in the Court’s January 15,
2007 Resolution.43

Petitioners’ arguments

Petitioners assign as error the CA’s appreciation of the evidence

already affirmed and considered by the trial court. They maintain that
the change in the presiding judges who heard and decided their case
resulted in the appreciation of what would otherwise be inadmissible
evidence.44 Petitioners ask that the Court exempt their petition from the
general rule that a trial judge’s assessment of the credibility of witnesses
is accorded great respect on appeal.

To support their claim that the trial and appellate courts erred in ruling in
favor of respondent, they assailed the various pieces of evidence
offered by respondent. They maintain that the Deed of Quitclaim
executed by the Heirs of Ap-ap is spurious and lacks the parties’ and
witnesses’ signatures. Moreover, it is a mere photocopy, which was
never authenticated by the notary public in court and no reasons were
proferred regarding the existence, loss, and contents of the original
copy.45 Under the best evidence rule, the Deed of Quitclaim is
inadmissible in evidence and should have been disregarded by the
court.

Respondent did not prove that she and her husband possessed the
subject property since time immemorial. Petitioners argue that
respondent admitted possessing and cultivating only the land that lies
outside the subject property.46

Petitioners next assail the weight to be given to respondent’s muniments

of ownership, such as the tax declarations and the survey plan. They
insist that these are not indubitable proofs of respondent’s ownership
over the subject property given that there are other claimants to the
land (who are not parties to this case) who also possess a survey plan
over the subject property.47

Petitioners then assert their superior right to the property as the present
possessors thereof. They cite pertinent provisions of the New Civil Code
which presume good faith possession on the part of the possessor and
puts the burden on the plaintiff in an action to recover to prove her
superior title.48

Petitioners next assert that they have a right to the subject property by
the operation of acquisitive prescription. They posit that they have been
in possession of a public land publicly, peacefully, exclusively and in the
concept of owners for more than 30 years. Respondent’s assertion that
petitioners are merely possessors by tolerance is unsubstantiated. 49

Petitioners also maintain that the reivindicatory action should be

dismissed for lack of jurisdict ion in light of the enactment of the IPRA,
which gives original and exclusive jurisdiction over disputes involving
ancestral lands and domains to the NCIP.50 They assert that the
customary laws of the Ibaloi tribe of the Benguet Province should be
applied to their dispute as mandated by Section 65, Chapter IX of RA
8371, which states: "When disputes involve ICCs/IPs,51 customary laws
and practices shall be used to resolve the dispute."

In the alternative that jurisdiction over an accion reivindicatoria is held

to be vested in the trial court, the petitioners insist that the courts should
dismiss the reivindicatory action on the ground of litis pendentia. 52 They
likewise argue that NCIP has primary jurisdiction over ancestral lands,
hence, the courts should not interfere "when the dispute demands the
exercise of sound administrative discretion requiring special knowledge,
experience and services of the administrative tribunal x x x In cases
where the doctrine of primary jurisdiction is clearly applicable, the court
cannot arrogate unto itself the authority to resolve a controversy, the
jurisdiction over which is initially lodged with an administrative body of
special competence."53 The courts should stand aside in order to
prevent the possibility of creating conflicting decisions.54

Respondent’s arguments

Respondent opines that the appellate court did not commit any
reversible error in affirming the trial court’s decision. The present petition
is a mere dilatory tactic to frustrate the speedy administration of
justice.55

Respondent also asserts that questions of fact are prohibited in a Rule

45 petition.56 Thus, the appreciation and consideration of the factual
issues are no longer reviewable.57

The issue of lack of jurisdiction is raised for the first time in the petition
before this Court. It was never raised before the trial court or the CA.
Thus, respondent insists that petitioners are now barred by laches from
attacking the trial court’s jurisdiction over the case. Citing Aragon v.
Court of Appeals,58 respondent argues that the jurisdictional issue
should have been raised at the appellate level at the very least so as to
avail of the doctrine that the ground lack of jurisdiction over the subject
matter of the case may be raised at any stage of the proceedings even
on appeal.59

Respondent maintains that there is no room for the application of litis

pendentia because the issues in the application for ancestral land
claim are different from the issue in a reivindicatory action. The issue
before the NCIP is whether the Government, as grantor, will recognize
the ancestral land claim of respondent over a public alienable land;
while the issue in the reivindicatory case before the trial court is
ownership, possession, and right to recover the real property.60

Given that the elements of lis pendens are absent in case at bar, the
allegation of forum-shopping is also bereft of merit. Any judgment to be
rendered by the NCIP will not amount to res judicata in the instant
case.61

Issues
The petitioners present the following issues for our considerat ion:

1. Whether the appellate court disregarded material facts and

circumstances in affirming the trial court’s decision;

2. Whether petitioners have acquired the subject property by

prescription;

3. Whether the trial court has jurisdiction to decide the case in light of
the effectivity of RA 8371 or the Indigenous People’s Rights Act of 1997
at the time that the complaint was instituted;

4. If the trial court retains jurisdiction, whether the ancestral land claim
pending before the NCIP should take precedence over the
reivindicatory action.62

Our Ruling

Whether the appellate court disregarded material facts and

circumstances in affirming the trial court’s decision

Both the trial and the appellate courts ruled that respondent has
proven her claims of ownership and possession with a preponderance
of evidence. Petitioners now argue that the two courts erred in their
appreciation of the evidence. They ask the Court t o review the
evidence of both parties, despite the CA’s finding that the trial court
committed no error in appreciating the evidence presented during trial.
Hence, petitioners seek a review of questions of fact, which is beyond
the province of a Rule 45 petition. A question of fact exists if the
uncertainty centers on the truth or falsity of the alleged facts. 63 "Such
questions as whether certain items of evidence should be accorded
probative value or weight, or rejected as feeble or spurious, or whether
the proofs on one side or the other are clear and convincing and
adequate to establish a proposition in issue, are without doubt
questions of fact."64

Since it raises essentially questions of fact, this assignment of error must

be dismissed for it is settled that only questions of law may be reviewed
in an appeal by certiorari.65 There is a question of law when there is
doubt as to what the law is on a certain state of facts. Questions of law
can be resolved without having t o re-examine the probative value of
evidence presented, the truth or falsehood of facts being
admitted.66 The instant case does not present a compelling reason to
deviate from the foregoing rule, especially since both trial and
appellate courts agree that respondent had proven her claim of
ownership as against petitioners’ claims. Their factual findings,
supported as they are by the evidence, should be accorded great
respect.

In any case, even if petitioners’ arguments attacking the authenticity

and admissibility of the Deed of Quitclaim executed in favor of
respondent’s father are well-taken, it will not suffice to defeat
respondent’s claim over the subject property. Even without the Deed of
Quitclaim, respondent’s claims of prior possession and ownership were
adequately supported and corroborated by her other documentary
and testimonial evidence. We agree with the trial court’s observation
that, in the ordinary course of things, people will not go to great lengths
to execute legal documents and pay realty taxes over a real property,
unless they have reason to believe that they have an interest over the
same.67

The fact that respondent’s documents traverse several decades, from

the 1960s to the 1990s, is an indication that she and her family never
abandoned their right to the property and have continuously exercised
rights of ownership over the same.

Moreover, respondent’s version of how the petitioners came to occupy

the property coincides with the same timeline given by the petitioners
themselves. The only difference is that petitioners maintain they came
into possession by tolerance of the Smith family, while respondent
maintains that it was her parents who gave permission to petitioners.
Given the context under which the parties’ respective statements were
made, the Court is inclined to believe the respondent’s version, as both
the trial and appellate courts have concluded, since her version is
corroborated by the documentary evidence.

Whether petitioners have acquired the subject property by prescription

Assuming that the subject land may be acquired by prescription, we

cannot accept petitioners’ claim of acquisition by prescription.
Petitioners admitted that they had occupied the property by tolerance
of the owner thereof. Having made this admission, they cannot claim
that they have acquired the property by prescription unless they can
prove acts of repudiation. It is settled that possession, in order to ripen
into ownership, must be in the concept of an owner, public, peaceful
and uninterrupted. Possession not in the concept of owner, such as the
one claimed by petitioners, cannot ripen into ownership by acquisitive
prescription, unless the juridical relation is first expressly repudiated and
such repudiation has been communicated to the other party. Acts of
possessory character executed due to license or by mere t olerance of
the owner are inadequate for purposes of acquisitive prescription.
Possession by tolerance is not adverse and such possessory acts, no
matter how long performed, do not start the running of the period of
prescription.68

In the instant case, petitioners made no effort to allege much less prove
any act of repudiation sufficient for the reckoning of the acquisitive
prescription. At most, we can find on record the sale by petitioners
Delfin and Agustin of parts of the property to petitioners Maynard and
Jose; but the same was done only in 1998, shortly before respondent
filed a case against them. Hence, the 30-year period necessary for the
operation of acquisitve prescription had yet to be attained.

Whether the ancestral land claim pending before the National

Commission on Indigenous Peoples (NCIP) should take precedence
over the reivindicatory action

The application for issuance of a Certificate of Ancest ral Land Title

pending before the NCIP is akin to a registration proceeding. It also
seeks an official recognition of one’s claim to a particular land and is
also in rem. The titling of ancestral lands is for the purpose of "officially
establishing" one’s land as an ancestral land.69 Just like a registration
proceeding, the titling of ancestral lands does not vest
ownership70 upon the applicant but only recognizes ownership 71 that
has already vested in the applicant by virtue of his and his
predecessor-in-interest’s possession of the property since time
immemorial. As aptly explained in another case:

It bears stressing at this point that ownership should not be confused

with a certificate of title. Registering land under the Torrens system does
not create or vest title because registration is not a mode of acquiring
ownership. A certificate of title is merely an evidence of ownership or
title over the particular property described therein. Corollarily, any
question involving the issue of ownership must be threshed out in a
separate suit x x x The trial court will then conduct a full-blown trial
wherein the parties will present their respective evidence on the issue of
ownership of the subject properties to enable the court to resolve the
said issue. x x x 72 (Emphasis supplied)

Likewise apropos is the following explanation:

The fact that the [respondents] were able to secure [TCTs over the
property] did not operate to vest upon them ownership of the property.
The Torrens system does not create or vest title. It has never been
recognized as a mode of acquiring ownership x x x If the [respondents]
wished to assert their ownership, they should have filed a judicial action
for recovery of possession and not merely to have the land registered
under their respective names. x x x Certificates of title do not establish
ownership.73 (Emphasis supplied)

A registration proceeding is not a conclusive adjudication of ownership.

In fact, if it is later on found in another case (where the issue of
ownership is squarely adjudicated) that the registrant is not the owner
of the property, the real owner can file a reconveyance case and have
the title transferred to his name.74

Given that a registration proceeding (such as the certification of

ancestral lands) is not a conclusive adjudication of ownership, it will not
constitute litis pendentia on a reivindicatory case where the issue is
ownership.75 "For litis pendentia to be a ground for the dismissal of an
action, the following requisites must concur: (a) identity of parties, or at
least such parties who represent the same interests in both actions; (b)
identity of rights asserted and relief prayed for, the relief being founded
on the same facts; and (c) the identity with respect to the two
preceding particulars in the two cases is such that any judgment that
may be rendered in the pending case, regardless of which part y is
successful, would amount to res judicata in the other case." 76 The third
element is missing, for any judgment in the certification case would not
constitute res judicata or be conclusive on the ownership issue involved
in the reivindicatory case. Since there is no litis pendentia, there is no
reason for the reivindicatory case to be suspended or dismissed in favor
of the certification case.

Moreover, since there is no litis pendentia, we cannot agree with

petitioners’ contention that respondent committed forum-shopping.
Settled is the rule that "forum shopping exists where the elements of litis
pendentia are present or where a final judgment in one case will
amount to res judicat a in the other."77

Whether the trial court has jurisdiction to decide the case in light of the
effectivity of RA 8371 or the Indigenous People’s Rights Act of 1997 at
the time that the complaint was instituted

For the first time in the entire proceedings of this case, petitioners raise
the trial court’s alleged lack of jurisdiction over the subject -matter in
light of the effectivity78 of the IPRA at the time that the complaint was
filed in 1998. They maintain that, under the IPRA, it is the NCIP which has
jurisdiction over land disputes involving indigenous cultural communities
and indigenous peoples.

As a rule, an objection over subject -matter jurisdiction may be raised at

any time of the proceedings. This is because jurisdiction cannot be
waived by the parties or vested by the agreement of the parties.
Jurisdiction is vested by law, which prevails at the time of the filing of the
complaint.

An exception to this rule has been carved by jurisprudence. In the

seminal case of Tijam v. Sibonghanoy,79 the Court ruled that the
existence of laches will prevent a party from raising the court’s lack of
jurisdiction. Laches is defined as the "failure or neglect, for an
unreasonable and unexplained length of time, to do that which, by
exercising due diligence, could or should have been done earlier; it is
negligence or omission to assert a right within a reasonable time,
warranting the presumption that the party entitled to assert it either has
abandoned or declined to assert it."80 Wisely, some cases81 have
cautioned against applying Tijam, except for the most exceptional
cases where the factual milieu is similar to Tijam.

In Tijam, the surety could have raised the issue of lack of jurisdiction in
the trial court but failed to do so. Instead, the surety participated in the
proceedings and filed pleadings, other than a motion to dismiss for lack
of jurisdiction. When the case reached the appellate court, the surety
again participated in the case and filed their pleadings therein. It was
only after receiving the appellate court’s adverse decision that the
surety awoke from its slumber and filed a motion to dismiss, in lieu of a
motion for reconsideration. The CA certified the matter to this Court,
which then ruled that the surety was already barred by laches from
raising the jurisdiction issue.

In case at bar, the application of the Tijam doctrine is called for

because the presence of laches cannot be ignored. If the surety in
Tijam was barred by laches for raising the issue of jurisdiction for the first
time in the CA, what more for petitioners in the instant case who raised
the issue for the first time in their petition before this Court.

At the time that the complaint was first filed in 1998, the IPRA was
already in effect but the petitioners never raised the same as a ground
for dismissal; instead they filed a motion to dismiss on the ground that
the value of the property did not meet the jurisdictional value for the
RTC. They obviously neglected to take the IPRA into consideration.

When the amended complaint was filed in 1998, the petitioners no

longer raised the issue of the trial court’s lack of jurisdiction. Instead,
they proceeded to trial, all the time aware of the existence of the IPRA
as evidenced by the cross-examination82 conducted by petitioners’
lawyer on the CSTFAL Chairman Guillermo Fianza. In the
cross-examination, it was revealed that the petitioners were aware that
the DENR, through the CSTFAL, had lost its jurisdiction over ancestral
land claims by virtue of the enactment of the IPRA. They assailed the
validity of the CSTFAL resolution favoring respondent on the ground that
the CSTFAL had been rendered functus officio under the IPRA.
Inexplicably, petitioners still did not question the trial court’s
jurisdiction.1avvphi1

When petitioners recoursed to the appellate court, they only raised as

errors the trial court’s appreciation of the evidence and the conclusions
that it derived therefrom. In their brief, they once again assailed the
CSTFAL’s resolution as having been rendered functus officio by the
enactment of IPRA.83 But nowhere did petitioners assail the trial court’s
ruling for having been rendered without jurisdiction.

It is only before this Court, eight years after the filing of the complaint,
after the trial court had already conducted a full-blown trial and
rendered a decision on the merits, after the appellate court had made
a thorough review of the records, and after petitioners have twice
encountered adverse decisions from the trial and the appellate courts
— that petitioners now want to expunge all the efforts that have gone
into the litigation and resolution of their case and start all over again.
This practice cannot be allowed.

Thus, even assuming arguendo that petitioners’ theory about the effect
of IPRA is correct (a matter which need not be decided here), they are
already barred by laches from raising their jurisdictional objection under
the circumstances.

WHEREFORE, premises considered, the petition is denied for lack of merit.

The March 30, 2006 Decision of the Court of Appeals in CA -G.R. CV No.
78987 and its May 26, 2006 Resolution denying the motion for
reconsideration are AFFIRMED.

SO ORDERED.