Republic of the Philippines

Department of Environment and Natural Resources

PROVINCIAL ENVIRONMENT AND NATURAL RESOURCES OFFICE
Pier 3, Cebu City

CRECENCIO B. ARES,
Claimant/Protestant,

- versus - PENRO Conflict No. 072216-244

Lot No. 777, Gss-07-01-000026
San, Jose, Catmon, Cebu
R.F.P.A No. 072216-03
LILIA O. BRANZUELA A. FIEL
Applicant-Respondent,
x--------------------------------------------------\

POSITION PAPER
for the Claimant/Protestant

COME NOW, the Claimant/Protestant, through the undersigned

Counsel, unto this Honorable Office, most respectfully states that:

The Parties

1. Claimant is Crecencio Ares, of legal age, Filipino and with provin-

cial address at San Jose, Catmon, Cebu and with postal address at 51 General
Espino St., Signal Village, Taguig City where he can be served with notices and
orders of the Honorable Office, and;
2. Applicant Lilia O. Branzuela A. Fiel is a Filipino, of legal age and a
resident of Poblacion, Catmon, Cebu per their Position Paper.

Facts of the Case

3. The property subject of this case originally came from Alejandra

Dorog Ares, the predecessor of the claimant being her great grandmother. The
property has an area of 198 square meters located in Brgy. Catadman (now
named as San Jose, Catmon or Poblacion Catmon), Catmon, Cebu;
4. The owner Alejandra Ares divided the property into two (2) equal
halves. She retained in her ownership the 99 square meters while the other 99
square meters were divided among her children namely; Agapito Ares, Juana
Ares, Anastacia Ares, Victor Ares and Cenon Ares in equal share, each having
19.8 square meters;
5. For herein claimant, his lineage is traced from her grandmother
Juana Ares whose son Maximo Ares, was married to Julita Butak-Ares, both
Maximo Ares and Julita Butak-Ares are his parents;
 2

6. On December 4, 1945 Alejandra Ares sold her share to Julita Bu-

tak-Ares, the mother of herein claimant by virtue of the public document titled
as “HIBALUAN SA TANAN NGA MAKABASA NIINI NGA:” dated 4 de Di-
ciembre 1945 (4th of December 1945) notarised before notary public Juan R.
Gino-o. A copy of the document is hereto attached as ANNEX “1” and the no-
tarial register as ANNEX “2”. The tax declaration was transferred in her name
subsequently. A copy of the tax declaration is hereto attached as ANNEX “__”.
The said property is bounded as follows:

North: Santiago Sususco, Bernardina Boter South: Vicente Densing

East: Osmena St. West: Provincial Road

To illustrate, this is how it is described: (drawing)

7. Subsequently, the remaining half of 99 square meters that was allo-

cated by Alejandra Ares among her children as mentioned in paragraph 4 were
consolidated and owned in one by Ignacio Ares. The copy of the tax declaration
in the name of Ignacio Ares for the year 1945 is hereto attached as ANNEX “3”.
The tax declaration of Igancio Ares has the following boundaries:

North: Santiago Sususco, Bernardina Boter South: Vicente Densing

East: Osmena St. West: Julita Butak

To illustrate, this is how it is described: (drawing)

8. Based on the foregoing description of the tax declaration of Ignacio

Ares with an area of 99 sq.m., the West portion of his property was already
owned by Julita Butak-Ares, the mother of herein claimant as early as 1945.

9. On February 28, 1989, Julita Butak-Ares, mother of the claimant

donated the aforementioned property in favor of the claimant. The DEED OF
DONATION INTER-VIVOS was acknowledged before notary public Leonardo
 3

Garcillano dated 28th day of February 1989. A copy of which is hereto attached
as ANNEX “4”;

The boundaries therefor of the property of Ignacio Ares in the year 1989
will be illustrated as follows: (drawing)

10. Subsequently, the Heirs of Ignacio Ares following the death of his
wife, thru his successors who are his children executed an EXTRAJUDICIAL
DECLARATION OF HEIRS WITH ADJUDICATION & DEED OF ABSO-
LUTE SALE pertaining to the above described property of Ignacio Ares in favor
of herein claimant. The document was acknowledged before notary public Hip-
pocrates R. Rocina docketed as Doc. No. 148, Page No. 30, Book No. VIII, Se-
ries of 2007.

Following the sale in favour of the claimant, the property then of the
claimant as of the year 2007 became compact and is hereby illustrated as fol-
lows: (drawing)

11. Thus, claimant was quite surprised to learn about the application for
free patent by the applicant. After his knowledge on the application, claimant
immediately posed his objection thru a letter addressed to CENRO Carmen,
Cebu office dated June 9, 2005. He

ISSUE

I. Whether or not applicant shall be granted with her free patent appli-
cation for Cadastral Lot No. 777, GSS-07-01-000026
II. Whether or not the applicant has a valid and legal claim of the sub-
ject property.

DISCUSSION AND ARGUMENT

I
 4

Claimant being the lawful owner of the subject property,

this application therefore should be denied.

12. Originally, the subject property was not labelled as Lot No. 777.
Later, after the cadastral survey, the same was labelled as Lot No. 777. During
and after the survey, the ownership of the property is with the claimant for hav-
ing acquired the same legally and by virtue of a public document.

13. The half portion of the subject property was acquired by the
claimant from her mother thru a donation dated 28th day of February 1989 while
the remaining half with an area of 99 square meters previously under the name
of Ignacio Ares was acquired by the claimant thru sale from the successors (chil-
dren) of the Ignacio Ares thru a document denominated as Extrajudicial Decla-
ration of Heirs with Adjudication and Deed of Absolute Sale signed by all the
heirs of Ignacio Ares. Thus, claimant being the lawful owner of the subject
property, this application therefore should be denied.

14. The applicant’s claim over the subject property as owner does not
possess any legal basis. In her claim that she acquired the half portion of the
subject lot from the Heirs of Ignacio Ares with an area of 99 square meters, the
heirs of the owners namely; FRANCISCO ARES, FRANCISCA ARES
CARINO, INOCENTA ARES ROJAS and MANUEL ARES themselves exe-
cuted an AFFIDAVIT subscribed on November 28, 2007 stated under oath that
they did not sell any of their property to herein claimant Lilia Branzuela Fiel.
What they sold was the property in Sitio Sun-ok, Barangay San Jose, Catmon,
Cebu to Alicia Branzuela, the sister of the herein applicant in the year 1985 but
not to the applicant herself. A copy of the affidavit is hereto attached as ANNEX
“5”;

The applicant herself personally knew that Francisco

Ares was not the lone survivor who inherited the said
99 square meters left by Ignacio Ares.

15. Applicant claimed that she allegedly acquired the portion owned by
Ignacio Ares, the 99 square meters by sale and presented as proof the DEED OF
CONFIRMATION OF ABSOLUTE DEED OF SALE dated March 10, 1997
executed by Francisco Ares. The said document was signed alone by Francisco
Ares who is just one of the compulsory heirs of the owner Ignacio Ares. The ap-
plicant herself personally knew that Francisco Ares was not the lone survivor
who inherited the said 99 square meters left by Ignacio Ares. But despite of that,
she misleads and misrepresents to the Honorable Office and submitted the said
document to support her claim of ownership. Applicant is therefore guilty of
fraud. The copy of the said deed is hereto attached as ANNEX “6”;

16. Also, in the same deed, it stated allegedly that Francisco Ares
owned the Lot No. 777 with an area of 130 square meters with boundaries as
follows:
 5

North: Juan Arnan South: Felicidad Cavada

East: Osmena St. West; Julita Butak Ares

17. This property referred to in the said deed is the same property came
from Ignacio Ares with an area of 99 square meters with the same boundaries as
mentioned in the preceding paragraphs. Thus, the subject property cannot in-
crease in its area in the subsequent transfer because the property has only a total
area of 99 square meters.

The basic concept of confirmation of a certain document is the exis-

tence of the document being confirmed. In this case, there is noth-
ing to confirm because the party in the deed of confirmation has not
executed any prior document to confirm.

18. Most importantly, the alleged person who executed the DEED OF
CONFIRMATION OF ABSOLUTE DEED OF SALE denied under oath having
executed the same. In his affidavit, Francisco Ares who is the alleged seller in
favour of the applicant, stated that he is not the sole owner of the property as he
owned it in common with his siblings namely; Francisca Ares Carino, Inocenta
Ares Rojas, Manuel Ares and Saludo Ares. He also denied having executed any
document adjudicating upon himself the ownership of the property as he knew
very well that he has siblings as co-owners. He further denied having executed
together with his siblings a Deed of Sale in favour of the claimant in the year
1985 as their mother was still alive in that year. He was surprised to learn to see
the Deed of Confirmation of Absolute Deed of Sale docketed as Doc. No. 118,
Page No. 25, Book No. XVII, Series of 1997 before notary public Bernardo
Alonzo because to him, the said document contains untruthful statement.

19. Also, the basic concept of confirmation of a certain document is the

existence of the document being confirmed. In this case, there is nothing to con-
firm because the party in the deed of confirmation has not executed any prior
document to confirm. The prior document presupposes its existence in a valid
and binding form. However, what the claimant presented was an unnotarized
Absolute Deed of Sale herein marked as ANNEX “7”. The said deed has no
valid and binding effect as it was not notarised. Also, its existence was already
denied under oath by the party who allegedly executed the said deed.

20. Claimant has no valid and legal basis in her claim of ownership
over the property subject of this application. Hence, this application is vehe-
mently objected to and must be denied.

II

Claimant hereby adopts and re-pleads the foregoing allegations and fur-
ther alleged as follows:
 6

Aside from a forged signature, the document

contained false representation of facts which
the applicant knew very well of the truth.

21. The applicant has no valid and legal claim over the subject prop-
erty. She based her application upon the tax declaration in her name which she
obtained it thru the falsified/fictitous documents whose existence was already
denied under oath by the party who allegedly executed it in favour of the
claimant. The production of the applicant of the fictitious document is already a
public knowledge among the persons who knew the parties in their community.
In fact, two of their neighbours in San Jose, Catmon, Cebu executed a JOINT
AFFIDAVIT OF TWO DISINTERESTED PERSONS who stated that they
knew personally the claimant Cresencio Butak Ares born on June 27, 1932 in
Catmon, Cebu. That the latter inherited from his mother Julita Butak Ares a par-
cel of land in Catadman (now San Jose, Catmon, Cebu), Catmon, Cebu and that
he has a long time dispute with the applicant Lilia B. Fiel over the subject prop-
erty which the claimant inherited from his mother and that they are fully aware
of the documents executed fictitiously by the applicant Lilia B. Fiel over the
subject property owned by the applicant to make it appear as being owned by
her. The copy of the said affidavit is hereto attached as ANNEX “8”;

22. The possession of the subject lot no. 777 by the respondent is NOT
in the concept of an owner, continuous, public and adverse to the exclusion of
others. Her possession in fact was illegal and not authorised by the true owner
who is the claimant. The issuance of tax declaration in favor of the applicant
was done in bad faith to the prejudice of the owner. Possession coupled with the
illegal transfer of name in the tax declaration does not transfer a valid owner-
ship. A valid transfer requires the existence of a valid contract of sale or dona-
tion from the prior owner. In this case, the documents used by the applicant were
all denied under oath by the alleged persons who executed the document being a
forgery in their signature. Aside from a forged signature, the document con-
tained false representation of facts which the applicant knew very well of the
truth. Francisco Ares executed an affidavit of adjudication and deed of confir-
mation in favour of the applicant. However, the latter is well aware that Fran-
cisco Ares is not the sole heir of the owner Ignacio Ares because the owner has
several children. The document required therefore is extrajudicial. Also, the
deed of confirmation is not valid and effective because in the first place, there is
nothing to confirm from as no prior deed of sale was executed that needs to be
confirmed. It being so, the claim ownership of the applicant is illegal.

In the case of NORMA DELOS REYES VDA. DEL PRADO, et.al vs.

PEOPLE OF THE PHILIPPINES, (G.R. No. 186030) promulgated on March
21, 2012, the Supreme Court stated in its decision as follows:

The material document claimed to be falsified in this case is the Deed

of Succession dated July 19, 1991, the presentation of which before
the Register of Deeds and other government agencies allowed the can-
 7

cellation of OCT No. P-22848, and the issuance of several new titles
in its stead.  The first and third elements were committed by the inclu-
sion in the subject deed of the clause that states, “(w)hereas, the parties
hereto are the only heirs of the decedent, the first name, is the surviv-
ing spouse and the rest are the children of the decedent.  The untruth-
fulness of said statement is clear from the several other documents
upon which, ironically, the petitioners anchor their defense, such as
the deed of extrajudicial partition dated October 29, 1979, the parties’
confirmation of subdivision, deed of exchange and Norma’s petition
for guardianship of her then minor children.  Specifically mentioned
in these documents is the fact that Corazon is also a daughter, thus an
heir, of the late Rafael.

The obligation of the petitioners to speak only the truth in their deed
of succession is clear, taking into account the very nature of the docu-
ment falsified.  The deed, which was transformed into a public docu-
ment upon acknowledgement before a notary public, required only
truthful statements from the petitioners.  It was a legal requirement to
effect the cancellation of the original certificate of title and the is-
suance of new titles by the Register of Deeds.  The false statement
made in the deed greatly affected the indefeasibility normally ac-
corded to titles over properties brought under the coverage of land
registration, to the injury of Corazon who was deprived of her right as
a landowner, and the clear prejudice of third persons who would rely
on the land titles issued on the basis of the deed.

We cannot subscribe to the petitioners’ claim of good faith because

several documents prove that they knew of the untruthful character of
their statement in the deed of succession.  The petitioners’ alleged
good faith is disputed by their prior confirmation and recognition of
Corazon’s right as an heir, because despite knowledge of said fact,
they included in the deed a statement to the contrary.  The wrongful
intent to injure Corazon is clear from their execution of the deed,
showing a desire to appropriate only unto themselves the subject par-
cel of land.  Corazon was unduly deprived of what was due her not
only under the provisions of the law on succession, but also under
contracts that she had previously executed with the petitioners.
 x x x."

What the applicant submitted are fal-

sified and fictitious documents.

Applying the principle in the above mentioned decision, the applicant has
all the obligation to supply only valid and effective documents in her free patent
application. Purposely in this application, she must have stated under oath that
she is the lawful owner of the subject property. However, in this case, what the
applicant submitted are falsified and fictitious documents. She knew for a fact
that Francisco Ares who allegedly executed the Deed of Confirmation of Abso-
 8

lute Deed of Sale is not the lone heir of the owner of the 99 square meters
named Ignacio Ares. Most importantly, Francisco Ares executed under oath that
he did not execute the said document and denied under oath his signature in the
said deed. But despite of her full knowledge of the falsity of the said deed, appli-
cant manage to deceive and misrepresent this Honorable Office in this free
patent application.

23. The Lot No. 777 being applied for holds the cadastral survey con-
ducted in the year 1981 was erroneous. This is supported by the correspondence
signed by then Regional Executive Director JEREMIAS L. DOLINO dated Oc-
tober 12, 1992 addressed to The Director of the Land Management Bureau in
Plaza Cervantes, Binondo, Manila. A copy of which is hereto attached as AN-
NEX “9”;

24. In his letter, Jeremias L. Dolino stated that the cadastral survey
project of the Municipality of Catmon, Province of Cebu under Cad-991-D by
the contractor Geodethic Engineer Jaime P. Boado contains deficiencies which
requires correction in the survey. Said contractor was furnished copies of the
field inspection and verification reports containing the nature and extent of the
errors and calling his attention to resume the correction survey and correct the
verified deficiencies. However, despite the time given, said contractor did not
follow the order, hence, the contract entered into by and between the Republic
of the Philippines thru the Bureau of Lands and Engr. Jamie P. Boado was can-
celled.

25. Based on the forgoing erroneous survey, Lot No. 777 was born and
remains uncorrected. Subsequently, the Sanguniang Bayan of Catmon, Cebu
made a resolution number 97, series of 1994 which purpose contains the follow-
ing:

REQUESTING THE REGIONAL EXECUTIVE DIRECTOR, DENR, RE-

GION 7 IN BANILAD, MANDAUE CITY TO CONDUCT A
CORRECTION/VERIFICATION SURVEY BY ADMINISTRATION OF THE
ERRONEOUS APPROVED SURVEY PROJECT, GSS-07-01-000026,
COMPRISING BARANGAYS CORAZON, FLORES AND SAN JOSE, ALL
OF CATION, CEBU

26. The aforementioned resolution was an offshoot of the alarming

consequential effects of the erroneous survey that caused series of boundary
troubles and disputes by and between the residents of the affected barangays.
And the subject property is one of those that belonged to the barangay with erro-
neous survey result which is barangay San Jose, Catmon, Cebu. A copy of the
resolution number 97, series of 1994 is hereto attached as ANNEX “10”;

27. Also, during the conduct of the cadastral survey, the claimant was
in Taguig City. It was applicant who was able to entertain the survey team who
claimed to be the owner of the entire subject property despite her full knowledge
that the claimant owned the same. Subsequently, when the claimant arrived in
his hometown in the barangay San Jose in Catmon, Cebu, he learned that the
 9

survey team conducted already the survey and his property which is the subject
matter of this case was claimed by herein applicant as her. Applicant already has
the intention of claiming the subject property as her as this is the most conve-
nient place for her to build her dwelling as she lives nearby if not adjacent to the
subject property.

CONCLUSION

This application for free patent registration holds its strength from the fal-
sified documents. In fact, the person who allegedly signed the falsified docu-
ments stated under oath that he has not executed any deed in favor of the appli-
cant as he is not the lone heir of the previous owner of the portion of the subject
property.

Herein claimant acquired the half portion of the subject property as early
as 1989 by virtue of donation from his mother and acquired the remaining half
in the year 2007 from the Heirs of Ignacio Ares who owns the other 99 square
meters.

PRAYER
WHEREFORE, premises considered, it is most respectfully prayed of the
Honorable Office for reasons provided to DENY the free patent application of
the subject property.

Other reliefs just and equitable are likewise prayed.

Done this _______________ in the City of Cebu, Philippines.

Respectfully submitted.

RIVERAL RIVERAL JUBAN RUZ & ASSOCIATES

Counsel for the Petitioner
Suite 404 Oftana Bldg., Jasmin St.,
Corner Mariano Cui, Capitol Site, Cebu City
(032) 256.3068 | (032) 412.4342

BY:

ROWELL G. JUBAN
PTR No. 618602, Cebu City, 1/6/15
 10

IBP No. 961727, Cebu Province, 1/7/15

MCLE Compliance No. IV-0018321, 4/23/13
ROLL No. 57424

To the Receiving Clerk

PENRO
Cebu City

Greetings!
Please submit the foregoing Position Paper to the Honorable Hearing Of-
ficer for resolution immediately upon receipt hereof. Thank you

ROWELL G. JUBAN

Copy furnished:

Atty. JORGE JOHN T. CANE

2nd Floor, Santiago Shipyard Bldg., Jose L. Briones Ave.,
Noth Reclamation Area, Cebu City