[ G.R. No. 45324. May 27, 1939 ] 68 Phil. 254
[ G.R. No. 45324. May 27, 1939 ]
THE GOVERNMENT OF THE PHILIPPINE ISLANDS, PETITIONER, VS. FRANCISCO ABADINAS ET AL., RESPONDENTS. JORGE GABUTAN, APPELLANT; BALBINO GABUTAN, APPELLEE. D E C I S I O N
CONCEPCION, J.:
The question to be considered and decided in this appeal is whether, after the issuance of an original certificate of title to a land in a cadastral case in favor of two co-owners, one of them may ask for the subdivision of the lot in the same cadastral case, or whether he should bring a separate action for partition as was decided by the appealed order sustaining the contention of the other co-owner.
The facts of the case are as follows: Jorge Gabutan and Ralbino Gabutan obtained an original certificate of title to lot No. 6381 of the Cebu cadastre (No. 12, G. L. R. O. Record No. 9468, lot 6381), which lot was adjudicated to them in undivided equal parts. Jorge Gabutan filed a motion in said cadastral case asking, by reason of certain charges alleged by him, that the court order in any mariner the subdivision of the said lot into halves, directing the surveyor, Espiritu Bunugan to prepare the subdivision plan by drawing a dividing line across the length or the width of the said lot. Balbino Gabutan opposed the motion, impugning the jurisdiction of the court to take cognizance thereof, contending that an action for partition should be brought for the purpose under section 84 of Act No. 496, and alleging, moreover, that the court, in a cadastral case, cannot decide questions bearing upon improvements and other rights acquired by the coowners.
The grounds of the opposition are indefensible. The jurisdiction of the court even after the issuance of the final decree of registration in a cadastral case, is not exhausted but, on the contrary, subsists as to all incidental questions affecting the registered title to the end that the court’s jurisdiction over the same subject matter be not split. This is borne out by the provisions of section 6 of Act No. 2259, known as the Cadastral Act, and by those of section 112 of the Land Registration Act, according to which, after the entry of final decree for the registration of a lot, subdivisions thereof may be made with the court’s approval (sec. 6, Act No. 2259), and after the entry of a certificate of title, the registered owner or any interested party may ask the corresponding court to declare the termination of registered real rights or the creation of new real rights etc. (sec. 112, Act No. 496).
The oppositor-appellee contends that the present case is governed by section 84 of Act No. 496 reading:
“Sec. 84. In all proceedings for partition of registered land, after the entry of the final judgment or decree of partition * * *.” (Italics ours.)
Note that the quoted portion of section 84 speaks only of proceedings for partition; not actions for partition, and the last paragraph of section 6 of the Cadastral Act precisely refers to proceedings for partition. As above stated, after the entry of the final decree for the registration of a lot, subdivisions thereof may be made, and the last paragraph of the said section 6 reads:
“All subdivisions under this section shall be made in accordance with the provisions of section forty-four of Act Numbered Four hundred and ninety-six * * *.”
And under section 44 of Act No. 496, the owner of a registered land may subdivide the same into various lots by petitioning the court to issue one or more new certificates for the lots into which the property is divided. From this it follows that to subdivide a lot, as in the present case, does not call for an action for partition, but only for an application in the same cadastral or registration proceedings, as the case may be, and the court may grant it in these proceedings.
The circumstance that the lot sought to be subdivided is the common property in equal parts of two coowners, does not, in our opinion, bring the present case outside the purview of" the said section 44 of the Land Registration Act; because if the said section were not applicable to the case at bar, we would come to the conclusion that a co-owner is not entitled to ask for the partition of a land owned in common by several, or that coowner is forever bound to remain as such. The contrary is precisely provided by article 400 of the Civil Code reading:
“Art. 400. No coowner shall be obliged to remain a party to the community, but each may, at any time, demand the partition of the thing held in common.”
Where to ask for the division of the lot in question, has been answered by us: in the cadastral case under the provisions of section 6 of the Cadastral Act.
We do not believe that the action for partition lies in the present case because, according to section 184 of the Code of Civil Procedure, the said action should be brought when the right of ownership of the parties should be judicially passed upon before the partition of the property is decreed. In the instant case, the right of ownership of the coowners has already been decided by the final decree of registration.
Another objection of the oppositor is to the effect that the court, in a cadastral case, cannot decide, prior to the partition, questions bearing upon improvements and other rights acquired by the coowners. Section 112 of the Land Registration Act precisely provides that, after the entry of a certificate of title, the registered owner may at any time petition the court in writing stating that new real rights have been created which do not appear in the certificate. From which it follows that, if a new right, like, for instance, the right over improvements, is acquired by the owner, the court may, under the provisions of section 112, upon due notice to the interested parties, take cognizance of and decide said questions and others to the end that it may order an amendment of the corresponding certificate of title.
In view of the foregoing, the appealed order is reversed, and the Court of First Instance of Cebu is ordered, in the cadastral case above-mentioned, upon notice to and hearing of the parties, to decree the partition of lot No. 6381 of the Cebu cadastre, in accordance with law, with the costs to the appellee. So ordered.
Avanceña, C. J., Imperial, Diaz, and Laurel, JJ., concur. Moran, J., see dissenting opinion. Villa-Real, J., concurs in the dissenting opinion of Justice Moran.