It should be noted that what is being challenged in this case is the denial of the motion to cancel the notice of lis pendens. But whether as a matter of procedure 12 or substance, 13 a notice of lis pendens may be cancelled only on two grounds, which are: (1) if the annotation was for the purpose of molesting the title of the adverse party, or, (2) when the annotation is not necessary to protect the title of the party who caused it to be recorded. Neither ground for cancellation of the notice was convincingly shown to concur in this case. It would not even be fair to justify the cancellation of the notice on the legally untenable grounds that such annotation amounts to a collateral attack of petitioner's certificate of title or that ownership cannot be adjudicated in a partition case. It must be emphasized that the annotation of a notice of lis pendens is only for the purpose of announcing "to the whole world that a particular real property is in litigation, serving as a warning that one who acquires an interest over said property does so at his own risk, or that he gambles on the result of the litigation over said property." 14 Here, the parties are still locked in a legal battle to settle their respective claims of ownership. The lower court allowed the annotation pending litigation only for the purpose of giving information to the public that parcel of land is involved in a suit and that those who deal with the property is forewarned of such fact.
On the contention that ownership cannot be passed upon in a partition case, suffice it to say that until and unless ownership is definitely resolved, it would be premature to effect partition of the property. 15 For purposes of annotating a notice of lis pendens, there is nothing in the rules which requires the party seeking annotation to prove that the land belongs to him. 16 Besides, an action for partition is one case where the annotation of a notice of lis pendens is proper. 17
Further, contrary to petitioner's argument, one of the issues agreed upon by the parties at pre-trial is to determine what are the properties acquired by the spouses during their marriage. 18 In addition, private respondent in his answer with counterclaim prayed for the reconveyance of the disputed lots. Accordingly, the issue of ownership has been put in issue and each claimant must present their respective evidence to substantiate their respective allegations. 19 Considering that this is a partition case, the court is required to inquire into the "nature and extent of title" of the supposed claimant. 20 The title referred to by the rule is the purported ownership of the claimants and not the certificate of title mentioned in Section 48 of P.D. 1529, although the latter may be considered in the determination of the former.
WHEREFORE, by virtue of the foregoing, the petition is DENIED and the assailed decision of the Court of Appeals is AFFIRMED.
Regalado, Melo, Puno and Mendoza, JJ., concur.
1 Petitioner is one of the legitimate children of private respondent. The latter has illegitimate children with another woman.
2 The listed properties are lumber business, rents, four buildings and a warehouse. (Complaint, ANNEX "D" of Petition, pp. 2-3; Rollo, p. 47-48).
3 Order of RTC dated November 24, 1992; Rollo, p. 72.
4 Court of Appeals Decision promulgated February 8, 1994; Rollo, pp. 35-41.
5 Halili v. NLRC, 257 SCRA 174.
6 Property Registration Decree.
7 Halili v. NLRC, 257 SCRA 174 (1996).
8 Heirs of Gonzaga v. CA, 261 SCRA 327; Republic v. CA, 258 SCRA 712; In ejectment cases, a certificate of title is conclusive evidence of ownership and it does not matter if the title is questionable (Dizon v. CA, 264 SCRA 391).
9 Private Respondent's Memorandum, p. 6; Rollo, p. 196.
10 Sec. 32, P.D. 1529.
11 Petition, p. 10; Rollo, p. 16.
12 1997 Rules of Civil Procedure, Rule 13, Section 14 (formerly Section 24).
Notice of lis pendens. — xxx xxx xxx
The notice of lis pendens hereinabove mentioned may be cancelled only upon order or the court, after proper showing that the notice is for the purpose of molesting the adverse party, or that it is not necessary to protect the rights of the party who caused it to be recorded. (Emphasis supplied).
13 Sec. 77 of P.D. 1529 provides. "Cancellation of lis pendens. — Before final judgment, a notice of lis pendens may be cancelled, upon order of the court, after proper showing that the notice is for the purpose of molesting the adverse party, or that it is not necessary to protect the rights of the party who caused it to be registered. It may also be cancelled by the Register of Deeds upon the verified petition of the party who caused the registration thereof. (Emphasis supplied).
14 Sajonas v. CA, 258 SCRA 79; Garbin v. CA, 253 SCRA 187; Tanchoco v. Aquino, 154 SCRA 1; J.P. Pellicer & Co., Inc. v. Philippine Realty Corp., 87 Phil. 302.
15 Catapusan v. CA, 264 SCRA 534.
16 Villanueva v. CA, G.R. No. 117108, November 5, 1997.
17 The other instances where the notice of lis pendens is proper are: a) an action to recover possession of real estate, b) an action to quiet title thereto, c) an action remove clouds thereon, d) any other proceedings of any kind in Court directly affecting the title to the land or the use or occupation thereof or the buildings thereon. See Magdalena Homeowners Association, Inc. v. CA, 184 SCRA 325 (1990) cited in Villanueva v. CA, G.R. No. 117108, November 5, 1997; See also Section 14, Rule 13 (formerly Section 24, Rule 14), 1997 Rules or Civil Procedure and Section 76 of P. D. 1529.
18 Annex "H" of the Petition; Rollo, p. 61.
19 Sec. 1, Rule 131.
20 1997 Rules of Civil Procedure, Section 1, Rule 69. "Complaint in action for partition of real estate. — A person having the right to compel the partition of real estate may do so as provided in this Rule, setting forth in his complaint the nature and extent of his title and an adequate description of the real estate of which partition is demanded and joining as defendants all other persons interested in the property. (Emphasis supplied).
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