EULALIA LLABAN ABELLA, ET AL., PETITIONERS, VS. HON. JOSE S. RODRIGUEZ, JUDGE OF THE CFI OF CEBU, NECITACION ESTRERA AND REGISTER OF DEEDS OF CEBU CITY, RESPONDENTS.

In the Court of First Instance of Cebu, acting as a cadastral court,
respondent Necitacion Estrera filed in Cadastral Case No. 12, LRC Rec. No. 9468,
a petition for cancellation of title dated November 17, 1959. The petition
alleged that In consideration of P1,000.00, said Necitacion Estrera bought a
parcel of land (Lot No. 6002) situated at Guadalupe, Cebu City, from Gregorio
Cavan and Pascual Cavan, heirs of Fernando Cavan one of the registered owners of
said lot; that the original certificate of title of the lot was lost during the
last global war and the same was judicially reconstituted by her in accordance
with Republic Act No. 26; that the lot was declared by her for taxation
purposes; and that the reconstituted Original Certificate of Title No. RO-1963
covering the aforementioned lot is in her possession. The prayer was for an
order to the Register of Deeds of the province of Cebu to cancel the
reconstituted Original Certificate of Title in the name of Fernando Cavan and to
issue a transfer certificate of title solely in her name.

On November 20, 1959, respondent Judge, sitting as a cadastral Judge, issued
an order for the hearing of the petition on December 5, 1959 and the publication
of said order requiring all persons interested to appear on that date to show
cause why the petition for cancellation should not be granted.

When the case was called for hearing on December 5, 1959, petitioners herein,
thru counsel, appeared before the court and registered their opposition to the
petition. The Judge, in open court, consequently issued an order on that date
giving oppositors ten days time from receipt thereof within which to file a
written opposition to the petition.

Accordingly, petitioners filed a written answer and opposition dated December
9, 1960, asserting that they are the heirs of some of the registered owners of
the land and that the deed of sale allegedly signed by the heirs of Fernando
Cavan is unenforceable against the registered rights, interests, participations
and ownerships of the other registered owners. They questioned Necitacion
Estrera’s authority to cancel these registered rights in as summary
proceedings.

Upon notice issued by the deputy clerk of court dated December 16, 1959, the
petition was set for hearing on February 12, 1960, but it was later postponed to
March 16, 1960. On this latter date, the hearing was again post poned. On July
20 of that same year, another notice of hearing was issued by the deputy clerk
setting the case for trial on September 13, 1960 at 8:00 a.m. On this date,
however, nobody appeared for petitioners. According to counsel, he was then
indisposed and confined in bed, but he believed that another counsel for one of
petitioners’ co-heirs who used to appear in court in previous meetings would
make proper representations in court for the stand of oppositors. Counsel
further avers that said Atty. de la Victoria failed to appear in court on
September 13, 1960 because he never received any notice of trial supposed to be
had that day.

On September 16, 1960, the Judge issued an order dideclaring herein
petitioners in default and that the latter’s opposition be considered withdrawn.
The cadastral deputy clerk was then commissioned to receive evidence that may be
addcuced by respondent Necitacion Estrera.

On September 16, 1960, the Judge issued an order directing the Register of
Deeds of Cebu to cancel Original Certificate of Title No. RO-1963 covering Lot
No. 6002, Cebu Cadastre, and once cancelled, to issue a new Transfer Certificate
of Title in favor of Necitacion Estrera.

On September 29, 1960, herein petitioners filed a motion for reconsideration
of the orders of September 13 and 16, 1960. On October 1,1960, they also filed
an urgent motion with the cadastral court to cancel Transfer Certificate of
Title No. 21957 issued by the Register of Deeds of Cebu on September 19, 1960 in
the name of Necitacion Estrera.

On November 12, 1960, respondent Judge issued two orders: One denying
petitioners’ motion for reconsideration, and the other denying their urgent
motion dated October 1, 1960.

The present proceedings seek to annul these two last mentioned orders on the
main ground that the respondent Judge had no jurisdiction to issue the same.

The petition is meritorious.

The rule is well settled that while, under section 112 of the Land
Registration Act, any registered owner of land or other person in interest may,
on certain grounds, apply by petition to the cadastral court for a new
certificate or the entry or cancellation of a memorandum thereon, such relief
can only be granted if there is no adverse claim or serious objection on the
part of any party in interest; otherwise, the case becomes controversial and
should be threshed out in an ordinary case or in the case where the incident
properly belongs (Jimenez vs. de Castro, 40 Off. Gaz. No. 3, 1st Sup., p. 8;
Tangunan, et al vs. Republic, 94 Phil., 171; 50 Off. Gaz. [1] 115). As well
stated by this Court in the case of Jimenez de Castro, supra—

“It is not proper to cancel an original certificate of Torrens title issued
exclusively in the name of a deceased person, and to issue a new certificate in
the name of his heirs under the provisions of section 112 of Act No. 496 when
the surviving spouse claims rights of ownership over the lands covered by said
certificate.”

In other words, relief under section 112 of Act No. 496 can only be granted
if there is unanimity among the parties. “Unanimity among the parties” is meant
the absence of serious controversy between the parties in interest as to the
title of the party seeking relief under said section (Enriquez et al vs.
Atienza, et al., 100 Phil., 1072; 53 Off. Gaz., [20] 7231).

Apparently, the petition filed by Necitacion Estrera is for the mere
cancellation of an original title and for the issuance of a new transfer
certificate of title. But the record shows that the ownership of the land
covered by said title sought to be cancelled is under controversy. Thus, while
herein respondent Necitacion Estrera claims that she bought Lot No. 6002 of the
Cebu Cadastre from the heirs of the registered owner Fernando Cavan, herein
petitioners, on the other hand, claim that the said lot is registered in the
name of several persons and that they are the legal heirs of some of the
registered owners, so that respondent has no right or authority whatsoever to
cancel their registered interests and participations in said lot. This is a
serious question that should be passed upon by a regular court. It is not a mere
incidental or routinary matter that could summarily be disposed by the Court of
First Instance in the exercise of its special and limited jurisdiction as land
registration court. As was said in the case of Castillo, et al. vs. Ramos, et
al. 78 Phil., 809; 45 Off. Gaz. p. 183, the remedy provided for in section 112
of Act 496 is summary and not adequate for the litigation of issues pertaining
to an ordinary civil action (Miraflor vs. Leaño, 93 Phil., 446; 49 Off. Gaz. [7]
2775).

Respondent Estrera contends that since the opposition to the petition for
cancellation is not under oath, respondent Judge did not commit a mistake in
declaring oppositors (petitioners) in default and in considering their
opposition as withdrawn on September 13, 1960. Suffice it to state here that the
provisions of Act 496 do not require that answer or opposition to a petition or
motion filed under section 112 of that Act be under oath. It is worthy to note
that Estrera’s petition itself was not under oath, and there is no reason for
her to expect that the answer thereto should be verified.

The court below as a cadastral court having no jurisdiction to pass upon the
petition for cancellation of title filed by Necitacion Estrera, the said
petition is hereby dismissed, without prejudice to the filing of a new one with
the proper court. Costs against respondent.

Concepcion, Reyes, J. B. L., Barrera, Paredes, Dizon, and
Makalintal, JJ., concur.