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Republic of the Philippines

Department of Agrarian Reform Adjudication Board (DARAB)


Office of the Provincial Adjudicator
Max Suniel-Yakal Sts, Carmen, Cagayan de Oro City

BELZEDISE L. NISPEROS,
Petitioner,
CANC. CASE NO. 1008-0004-2017
- versus-

HIERS OF ORENCIO ARIVAS For:


Sr., namely: Erlinda “NORMA” CANCELLATION OF ORIGINAL
Oyog Arivas, Marivic Arivas CERTIFICATE OF TITLE NO. E-597
Esperagoza, Orencio O. Arivas (Emancipation Patent No. 028007),
Jr., and Six (6) other children: REALLOCATION TO PETITIONER,
John Does Arivas & Jane Does REMOVAL OF ANY BENEFECIARIES
Arivas, AND DAMAGES with PRAYER FOR
Private Respondents, ISSUANCE OF TEMPORARY
RESTRAINING ORDER AND/OR
Provincial Agrarian Reform Program PRELIMENARY OR PERMANENT
Officer (PARPO); and Provincial INJUNCTION
Register of Deeds of Misamis
Oriental (ROD)
Public Respondents,
X------------------------------------------------X

POSITION PAPER/COMMENT

COMES NOW, the petitioner, through the undersigned counsel of Bureau of


Agrarian Legal Assistance (BALA) and unto this Honorable Provincial Adjudicator
most respectfully submits this position paper and avers that:

1. On November 21, 2017, the Honorable PARAD Jemima Anzorah M.


Pacasum issued an order directing the Private respondents, through the
undersigned counsel, to file their position paper within ten (10) days from
the receipt of the order.

2. The undersigned counsel received the order on November 28, 2017 as he


was still on travel from November21-24, 2017. Thus, they have until
December 7, 2017 to file the position paper. Photo Copy of the Special
Order, Routing Slip and Logbook are hereto attached and marked as
EXHIBITS “A”,”B”, “C” and “C-1”.
ADMISSIONS/DENIALS

3. The allegation under paragraph (1) of the petition with respect to the
personal circumstances of the petitioner is specifically denied for lack of
knowledge sufficient to form a belief as to the truth thereof;

4. The allegations under paragraph (2) and (4) referring to herein respondents
are all admitted;

5. The allegation under paragraph (3) is admitted with respect to Provincial


Agrarian Reform Program Officer (PARPO) being a necessary party but
denied the description of the title as EP No. 026007 but rather it was
Emancipation Patent No. 028007 issued in favor of Orencio Arivas ; Photo
Copy of the Title is hereto attached and marked as EXHIBITS “D”, “D-1”, “D-
2”, “D-3”

6. The allegations under paragraph (5) and (6) are specifically denied for lack
of knowledge sufficient to form a belief as to the truth thereof;

7. The allegation under paragraph (7) is specifically denied. The truth of the
matter being that private respondent Erlinda “Norma” Arivas is the
successor of ARB Orencio Arivas Sr. That petitioner is estopped from
claiming to be a re-allocatee of the subject land when he possessed the
land without the approval of the Department of Agrarian Reform for such
possession is illegal. That the act of the petitioner of dispossessing Orencio
Arivas Sr. of the awarded land was calculated to impair the latter’s vested
right of ownership.

8. The allegation under paragraph (8) to (12) are specifically denied for lack
of factual basis;

9. The allegation under paragraph (13) is admitted with respect to Orencio


Arivas being a tenant of the subject landholding;

10. The allegation under (14) is admitted;

11. The allegation under paragraph (16) is specifically denied, the truth of the
matter being that late Agrarian Reform Beneficiary Orencio Arivas, Sr.
NEVER sold his awarded land but rather it was his wife,
Erlinda“Norma”Arivas, who borrowed money from the late Genaro
Nisperos Sr. (Uncle of the herein petitioner and who happens to be a
Kumpare[Good friend] of the spouses Arivas) and in return she entrusted
the landholding to Genaro to temporarily enjoy the possession of the land
while they were in Bukidnon. That the amount of P6,000.00 was not a
consideration for the alleged sale but only a mere ordinary loan. Copy of
the Barangay minutes (Barangay Case No. 8 s 2017) is hereto attached and
marked as EXHIBIT-“E”.

12.The allegation under paragraph (17) is specifically denied; the truth of the
matter being that Respondent Orencio Arivas Sr. and Ms. Emeliana
Nesperos never signed/executed a Deed of Sale nor did the parties entered
into any agreement for the alleged sale. That his failure to cultivate his
landholding was due to his illness (Pulmonary Tuberculosis and Acute
Asthma) which made him permanently incapacitated to work his
landholding since 1990. Copy of the Death Certificate is hereto attached
and marked as EXHIBITS- “F”

13.The allegation under paragraph (18) and (19) are specifically denied, the
truth being that private respondents Erlinda Arivas is still a resident of
Cabantian, Magsaysay. Copy of the Certification from Punong Barangay and
Voters Certification is hereto attached and marked as EXHIBITS- “G” and
“H”

14.The allegation under paragraph (20) is specifically denied, the truth of the
matter being that Private respondent Arencio Arivas, Sr. and his heirs
DEMANDED the return of the possession of the land sometime in 1991 and
1993 but the petitioner and his father Napoleon A. Nisperos, Sr. refused to
surrender the subject land as they believed that the property was already
sold by Orencio Arivas Sr. to Emeliana Nisperos. In addition, the subject
landholding was already leased to Mr. Roger Edma sometime in 2006 and
again, the property was leased to a Chinese national, whose name was still
unknown, for the sum of Ten Thousand Pesos (P10,000.00) a month.

15.The allegation under paragraph (21) is specifically denied, the truth of the
matter being that private respondents tried to pay the real estate tax but
failed because it was already paid by the petitioner, not to mentioned that
his brother Napoleon Nesperos, Jr. is an employee of Municipal Assessor
Office of Magsaysay who caused the manipulation in processing the
payment of taxes.
16.The allegation under paragraph (22) is denied being that petitioner has no
legal rights over the property and therefore he is considered a planter in
bad faith.

17.The allegation under paragraph (23) is specifically denied. The affidavit is


tainted with fraud and intimidation as the petitioner maliciously
approached Marivic Esparagosa in their house while the latter was about to
take a bath and forced her to sign the affidavit while promising that he will
settle their land dispute. Since Marivic was not comfortable considering
that she was almost half naked and at that time she was not wearing her
eyeglasses, she was forced to sign the affidavit without reading its content.
However as soon as she was able to read and understand the content of
the affidavit, Marivic and her mother signified their intention to withdraw
their signature by not returning the said document. This is the reason why
the said affidavit was not notarized. Copy of the Affidavit is hereto attached
and marked as EXHIBIT- “I”;

18.The allegation under paragraph (25) is admitted with respect to the non-
payment of the value of the land by the Land Bank of the Philippines (LBP)
because the Department of Agrarian Reform (DAR) has not yet forwarded
the Land Transfer Claim Folder to the LBP.

NO CAUSE OF ACTION

“Material misrepresentation of the basic qualification as ARB’s pursuant to


Section 22 of RA. 6657, PD. 27 and other Agrarian Reform Laws.”

19. The allegations under paragraph (26),(27),(28)(30) and (31) are specifically
denied. The truth being that Orencio Arivas Sr. was a qualified farmer
beneficiary under PD 27 for being the actual cultivator/ tenant of the land
since 1974. This was confirmed by the petitioner in paragraph (13) and (14)
of their petition that Orencio Arivas, Sr. was a tenant and was identified as
Agrarian Reform Beneficiary of DAR. That sometime in 1987, private
respondents temporarily left Cabantian, Magsaysay because of peace and
order issue due to the presence of the NPA in Magsaysay. That
unfortunately, private respondent Orencio Arivas Sr. became permanently
incapacitated to work his landholding due to his illness (Acute Asthma and
Pulmonary Tuberculosis) sometime in 1990. That sometime in 1991 and
1993, private respondent demanded the return of the possession of the
land to install his wife as his successor but the petitioners refused to
surrender for they believe that it was already sold by Orencio Arivas, Sr. to
Emeliana Nisperos.

“Private respondents violated RA. 6657 by selling, transferring, leasing, or


conveying as beneficiary his right of ownership, right to use over the land
acquired by virtue of being a beneficiary..”

20.The allegations under paragraph (34), (35), (36), (37), (38), (39), (40), (41)
and (42) are specifically denied. The truth being that Private Respondent
Orencio Arivas, Sr. NEVER sold his awarded land but rather, it was his wife
who borrowed money from the late Genaro Nisperos Sr. and in return, she
entrusted the land to the former to temporarily enjoy the possession of the
land while they (Spouses Arivas) are in Bukidnon. That private respondent
and Ms. Emeliana Nisperos did not sign/execute a Deed of sale nor did the
party sign any agreement to prove the transfer of ownership.

“Deliberate and absolute non-payment of three (3) consecutive amortizations in


case of voluntary land transfer /direct payment scheme under Paragraph 12,
Section 4, Article II of A.O No.7 Series of 2014.”

“Deliberate and absolute failure of the ARB to pay at least three (3) annual
amortization to the Land Bank, provided an amortization table has been issued
to ARB.”

21. The allegation under paragraph (43), (44), (45), (46), (47), (48), (49) and
(50) are specifically denied. The truth of the matter being that during the
lifetime of Orencio Arivas, Sr. and prior to the issuance of EP title in his
favor, Orencio was regularly paying his lease-rental in the form of sharing of
harvest to the previous landowner, Amparo Dabouzet, since 1974 and
continued to pay his lease-rental to the new land owner until 1987 through
Genaro Nisperos, Sr. being the administrator of Ms. Emeliana Nisperos.
That after the issuance of the Title in his favor, Orencio tried to pay
amortization to the LBP but unfortunately, he failed because the LBP has
not yet received the Land Transfer Claim Folder (LTCF) from the
Department of Agrarian Reform.

“Willful and deliberate neglect or abandonment of the awarded land.”

22.The allegations under paragraph (51), (52), (53), (54), (55), (56), (58), (59),
(61) and (62) are specifically denied, the truth being that private
respondent did not actually abandon his awarded land. He temporarily
transferred to Bukidnon due to the peace and order issue in Magsaysay
because of the presence of New People Army (NPA). That his non-
possession of the land was due to failure of the Nisperos to surrender the
land when he demanded its return. It is clear that their intention is to
deprive him of his legal rights over the subject land. That Spouses Arivas is
still a resident of Magsaysay. See EXHIBIT -“G” and “H”.

This is an action for Cancellation of Original Certificate of Title No. E-597, Re-
allocation to petitioner, Removal of any Beneficiaries and damages with prayer
for issuance of Temporary Restraining Order/ or Permanent Injunction
commenced by petitioner Belzedise L. Nisperos, who happens to be the son of
Napolion Nisperos, Sr. who has pending petition before the Regional Director with
the same Facts, the same Cause of Action and the same Relief sought. Portion of
the petition is hereto attached and marked as EXHIBITS “J” and “J-1”

The subject matter of this action is a piece of land identified as Lot No. 8569
situated at Barangay Cabantian, Magsaysay under OCT No E-.597 issued in the
name of the late Orencio Arivas, Sr. by virtue of PD 27 and registered in the
Registry of Deeds of Province of Misamis Oriental. See EXHIBITS “D”, “D-1”, “D-
2”,and “D-3”.

FACTS OF THE CASE

Sometime in 1974, Orencio Arivas, Sr. was installed as tenant by the previous
landowner, Mrs. Amparo Dabouzet, over her parcel of agricultural land situated in
Cabantian, Magsaysay Misamis Oriental. In 1979, Amparo Dabouzet sold their
5.0000 hectares landholdings (including the tenanted land) to Mrs. Emeliana
Nisperos for an amount of P10,000.00. Since Orencio Arivas, Sr. was a tenant of
the former landowner, he remained, together with his wife Erlinda Arivas, in the
area and continued to be a tenant of Emeliana Nisperos.

Upon the implementation of Presidential Decree No. 27 otherwise known as


Tenant Emancipation Act, some of the landholdings of the Nisperos were covered
by the program including the tenanted area of Orencio Arivas, Sr. consisting of
1.0000 hectares more or less.

Sometime in 1987, Emeliana Nisperos offered her excessed land to the DAR but
only 4,572 sq.m out of 1.0000 sq.m he was actually tilling was distributed to
Orencio.
That on November 5, 1985, the property was awarded to Orencio Arivas, Sr. by
operation of P.D. 27 under Emancipation Patent No. 028007 covered by OCT E-
597 which was registered with the Register of Deeds of Misamis Oriental.

That prior to the issuance of the EP title in his favor, he was religiously paying his
lease rental in the form of sharing of harvest to the previous landowner (Amparo
Dabouzet) from 1974 and continue to pay to the new landowner (Emeliana
Nisperos) through her administrator Genaro Nisperos, Sr. until 1987.

That sometime in October 1987, Erlinda Arivas borrowed money from Genaro
Nisperos, Sr. to be used for the medication of her husband who at that time was
suffering from asthma and to temporarily left Cabantian due to the peace and
order issue because of the presence of the NPA in their municipality.

That in return for the loan, she entrusted the land to Genaro Nisperos, Sr. to
temporarily enjoy the possession of the land.

Sometime in 1990, Orencio Arivas suffered acute asthma and acute ulcer which
made him permanent incapacitated to work his landholding.

That sometime in 1991 and 1993, Orencio Arivas demanded the return of the
awarded land as he wanted to install his wife to succeed him to work on their
landholding but Napolion Nisperon, Sr. refused as they claim that it was already
sold by Orencio in favor of their mother Emiliana Nisperon sometime in 1987.

Since then, the farmer beneficiary Orencio Arivas was deprived of his rights over
the awarded land because of refusal of the Nisperos to surrender the land in his
favor.

Issues

1. Whether or not the heirs of Orencio Arivas, Sr. who are being deprived of
their rights due to refusal of the petitioner to surrender the awarded land,
are entitled to the possession of the disputed landholding being the
successor of the deceased beneficiary

Undoubtedly, the property was awarded to Orencio Arivas, Sr. by operation of


P.D. 27 under Emancipation Patent No. 028007 covered by OCT E-597 which was
registered with the Register of Deeds of Misamis Oriental. As such, for all intents
and purposes, he is the acknowledged owner of the contested land.

However sometime in 1991, when Orencio demanded the return of his


landholding, the father of the petitioner, Napolion Nisperos, Sr. refused to
surrender the possession of the land for they claim that the property was already
sold to Emeliana Nisperos.

That assuming, for purposes of arguments, that Orencio indeed sold his property,
is the sale valid?

As holder of an emancipation patent, Orencio Arivas is bound by the proscription


against transfers of land awards to third persons.

Under Paragraph 13 of PD 27, Title to land acquired pursuant to this Decree or


the Land Reform Program of the Government shall not be transferable except by
hereditary succession or to the Government in accordance with the provisions of
this Decree, the Code of Agrarian Reform and other existing laws and
regulations.

This prohibition is supported by Section 27 of R.A. No. 6657 which provides that:

Lands acquired by beneficiaries under this Act may not be sold, transferred or
conveyed except through hereditary succession, or to the government, or to the
LBP (Land Bank of the Philippines), or to other qualified beneficiaries for a
period of ten (10) years: Provided, however, That the children or the spouse of
the transferor, shall have a right to repurchase the land from the Government or
LBP within a period of two (2) years.

Therefore, applying the above mention provision of the law, it is very clear that
the sale is void.

Assuming that Orencio Arivas, Sr. is guilty of the said sale, the right to possess and
cultivate the land legally belongs to Private respondent Erlinda Arivas, being his
beneficiary.

2. Whether or not Orencio is guilty for deliberate and absolute failure to pay
his annual amortization to the Land Bank?

To recall, Orencio Arivas, Sr. tried to pay his annual amortization but failed
because the Land Bank has not yet received the Claim Folder from the
Department of Agrarian Reform, hence no schedule of amortization is given to
Orencio.

Section 4(13) of A.O 7 Series of 2014 as a ground for cancellation is not applicable
to Arivas, because one of the conditions under this provision is that the
Amortization Table must be issued to the ARB.

On July 17, 1987, former President Corazon C. Aquino issued Executive Order No.
228 which provides that as of October 21, 1972, all qualified farmer-beneficiaries
are now deemed full owners of the land that they acquired by virtue of PD No. 27.

Section 2 of E.O No. 228 provides that, xxx..Lease rentals paid to the landowner
by the farmer beneficiary after October 21, 1972, shall be considered as advance
payment for the land.

Obviously, since 1974, when Orencio Arivas, Sr. was installed by the previous land
owner Amparo Dabouzet until 1987 when the same property was sold to
Emeliana Nisperos, farmer beneficiary Arivas continued paying his lease-rental in
the form of sharing of harvest.

It is therefore presumed that by the issuance of EP title in his favor, Orencio


Arivas, Sr. has already paid the value of the land or if not at least partially paid its
value.

3. Whether or not Orencio neglected or abandoned his awarded land.

Abandonment or neglect, as a ground for the cancellation of an emancipation


patent, according to Castellano v. Spouses Francisco, requires a clear and
absolute intention to renounce a right or a claim, or to abandon a right or
property coupled with an external act by which that intention is expressed or
carried into effect. Intention to abandon, as held in Corpuz v. Grospe, implies a
departure, with the avowed intent of never returning, resuming or claiming the
right and the interest that have been abandoned. It consists in any one of these
conditions: (a) failure to cultivate the lot due to reasons other than the non-
suitability of the land to agricultural purposes, for at least two (2) calendar years,
and to pay the amortizations for the same period; (b) permanent transfer of
residence by the beneficiary and his family, which has rendered him incapable of
cultivating the lot; or (c) relinquishment of possession of the lot for at least two
(2) calendar years and failure to pay the amortization for the same period.
To re-iterate, Spouses Arivas only entrusted the landholding to Genaro Nisperos
Sr. when they temporarily transferred to Bukidnon sometime in 1987.

Unfortunately, in 1990, Orencio Arivas suffered Acute Asthma and T.B that made
him permanently incapacitated to work his land. However, sometime in 1991 and
1993, Orencio demanded the return of the awarded land as he wanted to install
his wife as his beneficiary but the Nisperos refused, claiming that the property
was already sold by Orencio in favor to Emeliana Nisperos.
Clearly, his non-possession of the subject land was due to failure of the Nisperos
to surrender the property since 1991 when Orencio demanded its return.

Affirmative Defenses

With all due respect to the Honorable Adjudicator, this petition is in the nature of
Agrarian Law Implementation (ALI) case which is under the exclusive jurisdiction
of the Office of the Regional Director.

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed of this


Honorable Adjudicator that the Petition be dismissed for lack of merit.

Furthermore, Private respondent respectfully prays that after due hearing, an


Order be issued:
1. Ordering petitioner to vacate in the area and turn over the possession,
management and cultivation to the heirs of the late Orencio Arivas, Sr.
2. Ordering the Department of Agrarian Reform to forward the claim folder to
the Land Bank to determine the payment of just compensation.

SUCH OTHER relief and remedies as are just and equitable under the premises are
likewise prayed for.

December 07, 2017, Cagayan de Oro City.


Bureau of Agrarian Legal Assistance
Department of Agrarian Reform

By:
ABUBAKAR R. BARAMBANGAN, Jr.
Legal Officer

Noted by:

Atty. MARIO JAY S. PIELAGO


Trial Attorney V, Chief, DAR-Legal Services Division

Copy furnished:

Atty. Juvy Ind V. Arubio

PROOF OF SERVICE

I hereby certify that a copy of this pleading is served thru personal service to:

Atty. Juvy Ind V. Arubio Received by:_________________


Counsel for the Petitioner Date:________________
ARUBIO CADAVOS BARSAGA
& PALERMO-ENRIQUEZ