SPECIAL SEVENTH DIVISION

[CA-G.R. UDK. SP No. 2651.  June 26, 1998.]

VIRGILIO NIEVERA, SR., ET AL., petitioners, vs. HON. FE ALBANO MADRID in his capacity as Presiding Judge of RTC of Santiago, Branch XXI and ABELARDO LIM, respondents.

D E C I S I O N

LABITORIA, J p:

This petition for certiorari, prohibition and mandamus with prayer for the issuance of injunction filed by the petitioners seeks to set aside the order of RTC, Branch XXI, Santiago City dated June 26, 1996 in Civil Case No. 21-2163 when it dispositive ruled: ¹ 

"NOW THEREFORE you are hereby commanded to proceed to that land situated at Caquilingan, Cordon, Isabela covered by T.C.T. No. T-167446 and eject the defendants found therefrom and place the plaintiff Abelardo Lim in possession of the landholding. You are also directed to submit your return on this writ within sixty (60) days from implementation thereof.

SO ORDERED."

The questioned order was issued by the court a quo pursuant to its Order of March 26, 1996. It held: ² 

"WHEREFORE in the light of the foregoing considerations judgment is hereby rendered ORDERING the defendants to vacate and surrender possession of that land situated at Caquilingan, Cordon, Isabela covered by T.C.T. No. T-167446 to the plaintiff Abelardo Lim.

SO ORDERED."

Aggrieved by the order of the trial court, petitioners raised the following issues for our resolution: ³

"1.     WHETHER OR NOT PUBLIC RESPONDENT HAS JURISDICTION OVER THE NATURE OF THE ACTION OR SUIT?

2.      WHETHER OR NOT THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION?"

First, the facts.

Plaintiff now private respondent Abelardo Lim filed Civil Case No. 21-2163 for accion publiciana and damages against defendants now petitioners on May 22, 1995 before public respondent. A motion to dismiss was filed by defendants (petitioners) on August 10, 1995 on the ground that the trial court has no jurisdiction over the case. This motion was denied on October 13, 1995. On November 14, 1995, the trial court declared petitioners in default upon motion of private respondent dated November 10, 1995. Petitioner on November 17, 1995, filed their answer. On November 27, 1995, petitioners (sic) filed a motion to lift order of default which was expunged from the records by order of the court a quo on January 16, 1996 and likewise on the same day ordered the submission of the case for decision.

On March 26, 1996, the court a quo rendered the questioned order.

The trial court on June 26, 1996 issued the assailed order which was issued pursuant to a motion for execution filed by private respondent on June 19, 1996.

Petitioners filed motion to quash writ of execution on August 21, 1996.

On May 15, 1997, private respondent filed motion for the removal of improvements on the subject property which petitioners opposed by filing their opposition on June 20, 1997. According to petitioners, public respondent up to now did not resolved the motion to quash execution. The motion for the removal of improvements filed by private respondent was likewise not acted upon by the trial court.

We will now discuss the issues raised by petitioners.

On the first issue, petitioners fault the trial court for taking cognizance of the case as it has no jurisdiction over the subject matter. They claimed that it is the DARAB that is clothed with power and authority to resolve the controversy between petitioners and private respondents as they are beneficiaries of the CARP. The decision therefore of public respondent ejecting them from the land subject of this case is null and void.

The petitioners cited Section 1, Rule 11 of the New DARAB Rules of Procedure pursuant to the provision of Sections 49 and 50 of R.A. 6657 and Section 34 of Executive Order No. 129-A in relation to Section 13 thereof which provides:

"Section 1.    Primary, original appellate jurisdiction.

The agrarian adjudication board shal (sic) have primary jurisdiction, both original and appellate to determine and adjudicate all agrarian dispute, case, controversies and matters or incidents involving the implementation of the Comprehensive agrarian reform program under R.A. 6657, Executive Order Nos. 129-A, 228, 229, R.A. 3844 as amended by R.A. 6389, PD 278 and other agrarian laws and their implementing guidelines."

as their authority

We are not persuaded.

The trial court found the petitioners (defendants) not to be tenants of the subject land. It ruled: ⁴

"The defendants argued that this case is within the jurisdiction of the Department of Agrarian Reform Adjudication Board because the land is within the coverage of CARP and that they are beneficiaries of the program. However the defendants do not claim that they are tenants. What they submitted is a Certification of Bernardo G. Juan, MARO, which states:

'This is to certify that as per records of this office, the landholding of Mr. Abelardo Lim located at Caquilingan, Cordon, Isabela, with an area of 153,660 Square meters, more or less and covered by TCT T-167446 was identified to be covered under Phase III-B (5.01-24.00 hectares) of the Comprehensive Agrarian Reform Program (CARP) pursuant to R.A. No. 6657.

It is further certified that the landowner thru his counsel had the intention to voluntarily offer the subject landholding under CARP coverage but since the landowner failed to submit the supporting documents, the processing was held in abeyance pending the submission of the said supporting documents. (Attached is the letter intent of the landowner counsel, dated July 17, 1991 and 1st Indorsement, dated August 5, 1991 of the Provincial Agrarian Reform Officer together with the letter addressed to Mr. Abelardo Lim, dated August 26, 1991, requesting for the submission of the required documents for reference).

This certification is being issued upon the request of interested party for whatever legal purpose it may serve.'

The alleged letter of the landowner and the first indorsement and letter which are mentioned in the above certification were not submitted. However, even if it is true that the landowner intended that he will voluntarily offer the land under CARP coverage, it does not deprive him of his right to go to Court to eject persons who are illegally occupying his land without his consent and permission.

The defendants also submitted various tax declarations which on their faces show that they were secured by the defendants only on September 14, 1995 after the complaint was filed. The fact that the defendants seem to be claiming ownership of the land by virtue of transfer of rights, shows that this is a proper case of accion publiciana and not an agrarian case."

As found by the trial court, there is no tenancy relationship of the parties which would vest DARAB jurisdiction to try this case. Findings of facts by the trial court is given great weight on appeal and that the same be not disturbed unless there is a showing that some substantial facts were not considered by the trial court which may affect the result thereof ⁵ which is not obtaining in this case.

Petitioners on the second issue, argued that trial court committed grave abuse of discretion when it issued the assailed orders.

Petitioners' contention is without merit.

The court a quo did not err when the motion to quash and entry of appearance by Atty. Ferdinand Paguio were not acted upon as there was no notice of hearing and proof of service. This motion is clearly violated Sections 4, 5 and 6 of Rule 15 of the 1997 Rules of Civil Procedure.

Petitioners filed the petition for certiorari on February 27, 1998 or more than two (2) years when they received the orders of public respondent dated March 26, 1996 on April 25, 1996 and the order granting the writ of execution before August 19, 1996, respectively.

Petition for Certiorari may be filed not later than sixty (60) days from notice of the judgment pursuant to Section 4 of Rule 65 of the 1997 Rules of Civil Procedure. In this case, the petition was filed beyond the period allowed by the rules.

Public respondent did not abuse its discretion amounting to lack of or in excess of jurisdiction when it issued the assailed orders.

WHEREFORE, foregoing considered, the Petition for Certiorari is ordered DISMISSED for lack of merit.

SO ORDERED.

^* Tuquero and Buzon, JJ., concur.

Footnotes

*          Vice J. Jainal D. Rasul who is on leave.

1.         Annex "B", Petition

2.         Annex "A", Petition

3.         p. 11, Rollo

4.         p. 27, Rollo

5.         Ayco vs. Fernandez, 195 SCRA 328; People vs. Laureta, 159 SCRA 258.