NARCISO SOLANCHO, PLAINTIFF-APPELLANT, VS. JOSEFA RAMOS AND ISMAEL CALDERON, ET AL., DEFENDANTS-APPELLEES.

This is an appeal from four orders of the Court of First Instance
of Cagayan in Civil Case No. 1519 ?

(1)  
Dated January
6, 1962, dismissing the complaint
without costs;

(2)  
Dated February 10, 1962, deferring the resolution
of plaintiff’s motion to reconsider said order of January 6, 1962 until after it is appraised of the
action of the Bureau of Lands on plaintiff’s free patent application;

(d) Dated March 9, 1962,
directing the District Land Office to investigate whether the land in question
is really a private land; and issued the order of March 9, 1962 directing the District Land Office to
investigate the status of the land.

On May 30, 1962,
the lower court denied the motion to reconsider.  Hence, the instant appeal.

It is contended by
appellant that the lower court erred in issuing the order of dismissal because
the motion to dismiss is based upon facts not alleged in the complaint.  This contention is unmeritorious.  A motion to dismiss under Rule 16 (formerly
Rule 8) of the Rules of Court is
not like a demurrer provided for in the old Code of Civil Procedure that must
be based only on the facts alleged in the complaint.  Except where the ground is that the complaint
does state no cause of action which must be based only on the allegations in
the complaint, a motion to dismiss may be based on facts not alleged and may
even deny those alleged in the complaint. 
(Ruperto v. Fernando, 83 Phil. 943; Cabague v. Auxilio, 92 Phil. 294;
Canete v. Madrigal
& Co., G.R. No. L-17836, August
20, 1962)

It is also contended by appellant that the defendants-appellees failed to adduce evidence in support of their
allegation that there is a
pending administrative case concerning the land in question.  Defendants-appellees
have, however, attached a letter of the Bureau of Lands advising Josefa Ramos to file her protest and the written protest to
their motion to dismiss, making it a part of their pleading and thereby
rendering unnecessary the presentation thereof by the defendants.

Obviously, both parties as well as the trial court have missed
the extent or meaning of the ground of the mo­tion to dismiss as contemplated
under the Rules of Court.  It is a point
which appears not to have been sufficiently considered.

As noted above, the defendants contend that the pendency of an administrative case between themselves and
the plaintiff before the Bureau of Lands is
a sufficient ground to dismiss the action.  On the other hand, the plaintiff, believing
that this ground as interposed by the defendants is sufficient ground for the
dismissal of his complaint, filed a motion to withdraw his free patent
application No. 1-6649.

This is not what
is contemplated under the law because under section 1(d), Rule 16 (formerly
Rule 8) of the Rules

(4) Dated May 30, 1962,
denying plaintiff’s motion to reconsider said order of January 6, 1962.

On December 8, 1961, Narciso Solancho filed with the
Court of First Instance of Cagayan a complaint
against Josefa Ramos, Flaviano
Ramos, Valentin Arios and Ismael Calderon, seeking the recovery of ownership and
possession of a piece of land.  The said
complaint alleges that the plaintiff is the owner of the land in question; that
he had been in possession of the same since time immemorial up to 1959 when the
defendants, by means of force, violence, threats, strategy, stealth and
intimidation, usurped and took possession of portion thereof; that the unlawful
occupation by the defendants will deprive plain­tiff of the use and fruits of
the same causing him to suffer damages; and that notwithstanding repeated
demands they refused to vacate and surrender the possession thereof.

Accordingly, plaintiff prayed that judgment be ren­dered
declaring him the owner of the land and, therefore, ordering the defendants to
vacate it and surrender pos­session thereof to plaintiff; and condemning the
defend­ants to pay, jointly and severally, actual and exemplary damages, plus
attorney’s fees and costs of suit.

Instead of answering the complaint, the defendants filed a motion
to dismiss it on the ground that there is a pending administrative case between
the plaintiff and de­fendant Josefa Ramos over the
same parcel of land before the District Land Office, hence, the lower court
acquired no jurisdiction over the action until the plaintiff had exhausted all
administrative remedies.  Attached to
their motion is a letter of the
Bureau of Lands advising Josefa Ramos to file her
protest to the free patent application and her written protest thereto.

The lower court granted the motion to dismiss.  There­upon,
plaintiff moved that said order be reconsidered and set aside, for the reason, inter alia, that his free patent application had
been withdrawn.  An opposition to this motion was filed by the
defendants.  Before resolving the motion
to reconsider, the lower court issued the above-men­tioned order of February 10, 1962.  Thereafter, plaintiff filed a manifestation to
the effect that his free patent application had been rejected by the Bureau of
Lands, and calling for the resolution of the motion.  Again, instead of resolving the motion for
reconsideration, the lower court of Court, one of the grounds for the dismissal
of an action is that “there is another action pending between the same
parties for the same cause.” Note that the Rule uses the phrase
“another action”.  This, phrase
should be construed in line with Section 1 of Rule 2, which defines the word action, thus ?

“Action means an
ordinary suit in a court of justice, by which one party prosecutes an­other for the enforcement or
protection of a right, or the prevention or redress of a wrong.  Every other remedy is a special proceeding.” (Underscoring supplied)

It is,
therefore, very clear that the Bureau of Lands is not covered under the
aforementioned provisions of the Rules of Court.

IN VIEW HEREOF, the orders appealed from are hereby
reversed and set aside, and the record of this case should be, as it is hereby, remanded to the lower court for further
proceedings.  Costs
against the appellees.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, and Sanchez, JJ., concur.

Castro, J., no part.