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Republic of the Philippines 10TH Judicial Region


Surigao City ANESIA MOSENABRE, 7117 Petitioner, OF ADVERSE CLAIM -versusELMIE PESCUESO, ET.AL., Respondent. X - - - - - - - - -- - - - - - - - - - - - - - X For: CIVIL CASE NO. CANCELLATION

(for the Respondent)








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 - -


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 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

September 12,

Corporation, vs. German Cruz,

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









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, [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, 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, 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.


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