Republic of the Philippines

10TH Judicial Region

REGIONAL TRIAL COURT

BRANCH 29
Surigao City

ANESIA MOSENABRE,
7117
Petitioner,

CIVIL CASE NO.

For:

CANCELLATION

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

POSITION PAPER
(for the Respondent)

Respondents,

through

the

Integrated

Bar

of

the

Philippines-Legal Aid Program acting as Counsel hereof, unto

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

STATEMENT OF THE FACTS OF THE CASE

The following facts remain undisputed by plaintiff, that

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

praying

thereof

that Elmie Pescauso,

being the

legitimate daughter of the late Francisco Subaan, who was in

possession of the subject property, the application for land
title of hereto plaintiff be dismissed and denied for lack of
merit. Copy of the said Protest is hereto attached and
marked as Exhibit 1, and made an integral part hereof.
Resultatively, the DENR resolved that the heirs of Francisco
Subaan represented by Elmie Pescauso should be given
better and superior right over the said property, and they
should continue to occupy the subject parcel of land in the
concept of an owner since they are in actual, continuous ,
open and notorious possession

of such land under the

provision of the Public Land Act. Copy of the said DENR

decision is hereto attached and marked as Exhibit 2, and
made an integral part hereof. A Motion for Reconsideration
was filed to the above-mentioned DENR decision, and the
said honorable office decided to modify the above-quoted
decision, and stated that, the decision promulgated by this
Office on 20 January 2004 is hereby modified accordingly
considering that any action by the DENR against the Free
Patent Application of the respondent would be a mere
exercise in futility. However, this Office hereby resolves to
request the Honorable Solicitor General to file the necessary
complaint for the reversion of Lot 1573, PL-898 into the mass
of public domain. Copy of the said Resolution is hereto
attached and marked as Exhibit 3, and made an integral
part hereof.
Unfortunately, unknown to hereto respondent, despite
the pendency of her Protest which was decided in the year
2004, a Certificate of Title was issued to the applicant,
hereto plaintiff, and likewise registered at the Register of
Deeds in the year 2003. Thus, hereto respondent filed the
Affidavit of Adverse Claim on the said title, copy of the

Affidavit of Adverse Claim is hereto marked as Exhibit 4,

and made an integral part hereof.
Corollary to the affidavit of adverse claim, respondent
filed a Petition for Annulment of Title, Reconveyance and
Damages at the Regional Trial Court. However, due to a
favorable decision on her part rendered by the DENR, she
caused for the dismissal of the same, as the non-dismissal
could result in a violation of the rules on non-forum
shopping, since an action for Reversion shall be filed by the
DENR.
Within the purview of these facts, hereto plaintiff filed
the instant case for the cancellation of the adverse claim.
ISSUE/S
During the Pre-Trial conducted, the parties in an Order
of the honorable Presiding Judge,

dated March 16, 2010,

were advised to submit their respective position paper on

the issue of whether or not the adverse claim has to be
cancelled.
DISCUSSION AND ARGUMENTS
Undeniably the filing of the adverse claim by hereto
respondent has sufficient basis.
Purposely, the annotation of an adverse claim is a
measure designed to protect the interest of a person over a
part of real property, and serves as a notice and warning to
third parties dealing with the said property that someone is
claiming an interest over it or has a better right than the

registered owner thereof. Sajonas v. Court of Appeals,

supra, p. 93 as cited in [G.R. No. 159212.
2005.] Navotas Industrial

September 12,

Corporation, vs. German Cruz,

et.al.
Hereto petitioner anchors her claim for cancellation of
the adverse claim on the ground that the said claim has
lapsed. Quoting paragraph 7 of her petition, he said that,
[C]onsidering that the aforesaid Adverse Claim had already
lapsed for more than thirty (30) days, and considering
further that the case filed by Elmie S. Pecauso was dismissed
with finality, petitioner demanded from respondent Elmie S.
Pescauso for the latter to cause the cancellation of such
adverse claim. Such demand however went unheeded.
Reading from such allegation, the hereto petition is therefore
solely sought for due to the lapse of the thirty (30) day
period from the registration of the adverse claim.
It must be noted that, we reiterate, the dismissal of the
petition for the annulment of the title was made in view of
the recent decision of the DENR declaring that the subject
parcel of land shall be reversed into the mass of the public
domain,

thus,

there

was

no

need

of

an

annulment

proceeding.
Thus, arguably, if the hereto cancellation is sought for
because of the lapse of the thirty day period, the High Court
has said in Alfredo Sajonas and Conchita Sajonas, vs. Court
of Appeals, Domingo Pilares and Register of Deeds of
Marikina, [G.R. No. 102377. July 5, 1996.] that,
In ascertaining the period of effectivity of an inscription of adverse
claim, we must read the law in its entirety. Sentence three, paragraph
two of Section 70 of P.D. 1529 provides: "The adverse claim shall be
effective for a period of thirty days from the date of registration." At

first blush, the provision in question would seem to restrict the

effectivity of the adverse claim to thirty days. But the above
provision cannot and should not be treated separately, but should be
read in relation to the sentence following, which reads: "After the
lapse of said period, the annotation of adverse claim may be
cancelled upon filing of a verified petition therefor by the party in
interest." If the rationale of the law was for the adverse claim to ipso
facto lose force and effect after the lapse of thirty days, then it would
not have been necessary to include the foregoing caveat to clarify
and complete the rule. For then, no adverse claim need be cancelled.
If it has been automatically terminated by mere lapse of time, the law
would not have required the party in interest to do a useless act. The
law, taken together, simply means that the cancellation of the adverse
claim is still necessary to render it ineffective, otherwise, the
inscription will remain annotated and shall continue as a lien upon
the property. For if the adverse claim has already ceased to be
effective upon the lapse of said period, its cancellation is no longer
necessary and the process of cancellation would be a useless
ceremony.

Further, the Supreme Court continued in the abovequoted decision and said that,
It should be noted that the law employs the phrase "may be
cancelled" which obviously indicates, as inherent in its decision
making power, that the court may or may not order the cancellation
of an adverse claim, notwithstanding such provision limiting the
effectivity of an adverse, claim for thirty days from the date of
registration. The court cannot be bound by such period as it would
be inconsistent with the very authority vested in it. A fortiori, the
limitation on the period of effectivity is immaterial in determining
the validity or invalidity of an adverse claim which is the principal
issue to be decided in the court hearing. (Ibid.)

Thus, with all due respect, the hereto adverse claim

CANNOT be cancelled as sought for by petitioner. Petitioner
failed to establish a strong reason and ground for the
honorable Court to grant their prayer. As we have said, the
dismissal of the petition for annulment of title filed by hereto
respondent under the circumstances thereof, and the expiry
of the thirty period set by law, ARE NOT sufficient and
satisfactory to merit the cancellation of the adverse claim.
Moreso, in this instance where the DENR itself said in the
decision above referred to, that the subject lot would be
reversed to the mass of public domain, which in effect,
indirectly, it invalidates the certificate of title issued to

hereto

petitioner,

subject

of

course

to

the

reversion

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

would

seem

prudent

under

the

prevailing

circumstances, that pending the reversion proceedings, the

adverse claim should not be cancelled so as to give
protection, to whom the law intends to, hereto respondent,

and to third parties that may come across the subject

property. In fact the Supreme Court have said that, [W]hile
it is the act of registration which is the operative act which
conveys or affects the land insofar as third persons are
concerned, it is likewise true, that the subsequent sale of
property covered by a Certificate of Title cannot prevail over
an adverse claim, duly sworn to and annotated on the
certificate of title previous to the sale. (Ibid. Sajonas vs. CA,
et.al.). Thus, any transfer of the subject property pending
resolution of the sought to be filed reversion proceedings,
would properly give notice to the transferee of the existing
condition affecting the said parcel of land, with the adverse
claim annotated on the certificate of title. As such, possible
legal problems could be avoided, it not minimized.
Thus, with all due respect, we respectfully pray, as we
have substantially shown, that the hereto petition for the
cancellation of the adverse claim be DENIED, and that the
prayer for damages likewise be DENIED . All other just and
equitable reliefs and remedies are prayed for.
MOST RESPECTFULLY SUBMITTED.
April 16, 2010, Surigao City , Philippines.

INTEGRATED BAR OF THE PHILIPPINES-SDN CHAPTER

Legal Aid Program
Counsel for Respondent
By:

STELLA C. CABAHUG-RANALAN
Roll Number 44817
IBP Lifetime Member No. 08295 3-18-09
PTR OR No. 1452573 1-4-10

MCLE Compliance III-0007148 12-29-09

3F del Castillo Bldg., Rizal St., Surigao City
Telefax Number (086) 232-7629