LEONARDO CABUDOL, PASTOR CABUDOL, DANIEL CABUDOL AND JESUS CABUDOL, PETITIONERS, VS. HON. NUMERIANO G. ESTENZO, ETC., REMIDIO BACUNAL, AND GENEROSA VENCESLAO-BACUNAL, RESPONDENTS.

On May 22, 1962, respondents Remigio Bacunal and Generosa
Venceslao-Bacunal filed against petitioners before the Court of First
Instance of Ormoc City an action, docketed as Civil Case 546-0, for the
recovery of possession of a five-hectare portion of Lot No. 10266,
covered by Transfer Certificate of Title No. 4067 of the register of
deeds of said city, and praying that they be declared owners thereof
and given its possession, plus damages and attorney’s fees.

Petitioners filed their answer denying the material allegations of
the complaint and praying for its dismissal on the ground that the land
being occupied by them is not Lot 10266 but Lot No. 10103 of the Ormoc
cadastre, which petitioners possessed and owned in common, and covered
by Original Certificate of Title No. P-66 of the Register of Deeds of
Ormoc City.

The case having been called for trial, the parties submitted a compromise agreement, the pertinent portions of which read:

“a. That the parties have agreed and their lawyers,
to have the court appoint a duly licensed Surveyor in the person of
Porfirio Ayuyao of this City, to make the relocation of lots Nos. 10266
and 10103, both of the Ormoc Cadastre, covered by T.C.T. No. 4067 of
the Office of the Register of Deeds of Ormoc City, and O.C.T. P-66 of
the Office of the Register of Deeds of Ormoc City, claimed respectively
by the plaintiffs and defendants; after which said Surveyor shall
submit his written report of the relocation to the Court;

“b.
That a Commissioner of the Court in the person of Mr. Iluminado
Dumagsa, shall be appointed, to be present when the relocation of both
lots will be made;

“c. That the Surveyor shall indicate in
his relocation maps with the concurrence of the Court Commissioner, the
portions of the two lots in the possession of both parties and/or third
persons;

x x x x

“e. That the adjoining owners of the lots claimed by
the respective parties shall be notified of the date when the
relocation shall be made, so that they, or their representatives may be
present when the relocation shall be made, if they so desired; x x x

“e.
That upon submission by the Surveyor of the relocation maps and the
joint report of the Surveyor and Commissioner of the Court, the
portions trespassed by either of the parties herein the possession of
the land shall be delivered to the corresponding owner immediately, as
shown by their respective titles;

“f. That the party who has
trespassed, as disclosed and verified by the relocation map and joint
report, shall pay exclusively for the services of the Surveyor the
amount of P200.00, otherwise, the parties shall pay proportionately for
said services, in relation to the extent of the trespass one party has
made on the other, or proportionally; x x x.”

Based on the foregoing compromise agreement, the trial court
rendered decision on September 21, 1962, with the following dispositive
portion:

“WHEREFORE, decision is hereby rendered in
accordance with the foregoing compromise agreement and after the
Surveyor and the Commissioner of the Court shall have submitted their
report, it is hereby ordered that the party who has trespassed, as
disclosed and verified by the relocation map and joint report, shall
pay exclusively for the services of the Surveyor the amount of P200.00;
otherwise, the parties shall pay proportionately for said services, in
relation to the extent of the trespass one party has made to the other,
or proportionally; it is further ordered that the party-depositor that
has not trespassed, may immediately withdraw his deposit without
pronouncement as to costs.”

Subsequently, a relocation and survey was conducted and after the
submission by Surveyor Porfirio Ayuyao and Commissioner Iluminado
Dumagsa of their report indicating therein that petitioners were
occupying or enchroaching the portion of Lot No. 10266 belonging to
respondents with an area of 5.3686 hectares, the lower court issued an
order on January 15, 1963 approving the aforesaid report and directing
petitioners to pay exclusively the surveyor the amount of P200.00, and
that upon their failure to do so, the decision as well as the order of
the court would be executed. ^[1]

On February 18, 1963, petitioner filed a motion to reconsider the
above-mentioned order on the ground that the relocation was made
without notice to the adjoining owners so that they were unable to
testify as to who between the parties were in possession of the portion
in controversy, and that the commissioner having failed to submit his
report in a formal hearing as provided by the Rules of Court, there is
need for the court to order the commissioner to make another relocation
of the premises and to submit his report at a formal hearing. This
motion was denied by the court a quo in an order issued on February 22,
1963.

On February 23, 1963, petitioners, by registered mail, filed their
notice of appeal and motion for extension of time to file a record on
appeal and appeal bond, but this motion was likewise denied by the
lower court in its order of March 1, 1963 on the ground that the same
was filed out of time, or after the order of January 15, 1963 had
already become final and executory. Their subsequent motions to
reconsider the said order of January 15, 1963 having been denied by
orders of the lower court of March 1 and 6, 1963, petitioners
interposed the present petition for certiorari to set aside the orders
of the lower court of March 1 and 6, 1963 and mandamus to order the
lower court to give course to their appeal.

This Court gave course to the petition, but did not issue the writ
of preliminary injunction prayed for by the petitioners. When this case
was called for hearing on October 18, 1963 nobody appeared for any of
the parties.

On September 14, 1964, or during the pendency of the instant
petition before this Court, petitioners, in their own behalf, with
conformity of counsel for the respondents, filed a manifestation with
the lower court, in Civil Case 546-0, alleging that having already sold
their Lot No. 10103 and having made up their minds to transfer their
residence to Mindanao, they were giving up their claim or interest in
the portion of Lot No. 10266, subject of the present litigation, and
that they would desist forever from entering said premises and
molesting the lawful owners, respondents herein. On September 28, 1964,
the petitioners wrote a letter to their counsel advising said counsel
that they were terminating his services because they were no longer
interested in the further prosecution of this case. On the basis of the
manifestation made by the petitioners in Civil Case No. 546-0 in the
court below and the letter of the petitioners to their counsel, herein
adverted to, on September 29, 1963 counsel for the respondents filed a
manifestation before this Court, attaching duplicate original copies of
said petitioners’ manifestation (in the court below) and letter to
their counsel, and prayed for such action as may be proper in the
premises. On October 21, 1963, the counsel for the petitioners withdrew
his appearance for the petitioners. On October 22, 1964, the
petitioners, in their own behalf, filed before this Tribunal a motion
to dismiss the instant petition on the ground that they are no longer
interested in the further prosecution of this case, and confirming the
manifestation that they had made in the court below.

It appearing that petitioners have signified their lack of interest
to further prosecute this case, and had thereby filed a motion to
dismiss their petition, the instant petition has become academic, and
We hereby dismiss the same, without pronouncement as to costs.

IT IS SO ORDERED.

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

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^[1] Page 14, records.