G.R. No.

L-45828 June 1, 1992

ROMERO, J.:
This is a petition for review on certiorari seeking the
reversal of the Decision 1 rendered by respondent Court
of Appeals in CA-G.R. No. 56788-B, dated March 7, 1977,
affirming the Decision 2 of the then Court of First Instance
of Bataan, dated April 6, 1974, in Land Registration Case
No. N-235, adjudicating in favor of herein private
respondents the subject two (2) parcels of land.
The undisputed facts of the case are as follows:
On January 29, 1973, spouses Silvestre Manlapaz and
Natividad Pizarro (herein private respondents) filed an
application before the Court of First Instance of Bataan,
seeking the registration and confirmation of titles to two (2)
parcels of land, under Act 496 in relation to Sec. 48 (B) of
C.A. No. 141, designated as Lot No. 2855 and Lot No.
2856. The parcels of land applied for are portions of Lot
2749 of Orion Cadastre covered by plans Sgs-4600-D and
Sgs-4601-D, situated at Barrio Damulog, Municipality of
Orion, Province of Bataan, containing an area of 49,954
sq. meters and 54,052 sq. meters, respectively.3
Prior to the initial hearing of the case, the trial court in its
Order dated April 5, 1973, directed the Land Registration
Commissioner to submit his report on whether or not the
parcels of land in question had been issued patents or
whether the same are subject of pending decrees. 4 In
compliance with this directive, Acting Geodetic Engineer
(Chief Surveyor) Amado Masicampo, on behalf of the
Commissioner of Land Registration, filed a manifestation
dated April 26, 1973 stating that the subject parcels of
land described on Plans Sgs-4600-D and Sgs-4601-D are
portions of Lot 2749, Cad. 241, Orion Cadastre and that
the same have been the subject of registration
proceedings in Court Cadastral Case No. 15, LRC (GLRO)
Cadastral Record No. 1021 wherein a decision has been
rendered although there is no existing record of the same
on file because it was among those records lost or
destroyed due to the ravages of the last global war. The
record also disclosed that Plans Sgs-4600-D and Sgs-
4601-D, when plotted in the Municipal Index Map through
their respective lines conflict with Lot 1, Sgs-2806 which
has been issued Sales Patent No. 5819. 5
The Director of Lands seasonably filed an opposition on
the ground that neither the applicants nor their
predecessor-in-interest possess sufficient title to acquire
ownership in fee simple of the parcels of land applied for;
that they have not been in open, continuous, exclusive
and notorious possession and occupation of the land in
question for at least thirthy (30) years immediately
preceding the filing of the present application; and that
these parcels of land are portions of the public domain
belonging to the Republic of the Philippines, and therefore,
not subject to appropriation. 6
At the hearing on August 21, 1973, the Court issued an
order of special default with the exception of the Director
of Lands. 7 As prayed for by private respondents' counsel,
the parties were allowed to present evidence before the
Clerk of Court who was commissioned to receive the
same and to submit his findings after the termination of the
reception of evidence. 8
In order to establish thirty (30) years of open and
continuous possession over the subject property, private
respondents presented Crisanto Angeles and Monico
Balila, Crisanto Angeles claimed that he first took
possession of these two (2) parcels of land in the year
1931 while he was still twenty (20) years old. He cleared
the land and planted different kinds of fruit-bearing trees
such as mango, star apple and bananas, as well as
seasonal crops thereon. He likewise converted 5,000 sq.
meters thereof into a ricefield which was enlarged to one
hectare. 9 These parcels of land were declared for
taxation purposes only in 1966. 10 Meanwhile, in the year
1938, he sold the parcel containing an area of about five
(5) hectares to Pablito Punay, who immediately took
possession of the same, cultivated it and introduced
several improvements thereon. 11 In September 1972,
after he had already cleared the whole tract of the second
parcel of land, he sold the same to private
respondents. 12 Pablito Punay also sold the first parcel of
land he acquired from Crisanto to them. 13 Angeles
further stated that he knew all the owners of the adjoining
parcels of land but, on cross-examination, was unable to
remember their names. 14 Witness Monico Balila testified
that he is the owner of the parcel of land adjoining private
respondent's property. He had seen Angeles clear the
same and plant different fruit trees. On cross-examination,
he said that he was twelve (12) years old when he first
lived at Bilolo, Orion, Bataan in 1938. His land holding was
five kilometers away from private respondents' land and it
was his uncle who was then in possession of the land he
presently owns. 15
Private respondent Silvestre Manlapaz also testified that
upon their acquisition of the two (2) parcels of land
designated as Lots 2855 and 2856, they immediately took
possession of the same, planted coconuts, camotes and
other vegetables and expanded the portion planted to
palay. Some portions were converted into two (2)
residential lots, one with an area of 276 sq. meters and the
other, 105 sq. meters. They then declared those
properties in their names and paid the corresponding land
taxes. 16
The Director of Lands, on the other hand, did not present
any evidence to support his opposition.
On April 6, 1974, the lower court rendered its decision, the
dispositive part of which reads as follows:
WHEREFORE, the title to two parcels of land
Identified and shown in plans Sgs-4600-D and
4601-D, situated at Barrio Damulog, Municipality
 of Orion, Province of Bataan, containing an area
of 49,954 square meters and 54,052 square
meters, respectively, is ordered confirmed in the
name of the spouses Silvestre Manlapaz and
Natividad Pizarro, both of legal age, Filipino
citizens and residents of Pilar, Bataan.
After this decision shall have become final, let an
order issue for a decree of registration in favor of
the applicants.
SO ORDERED. 17
From said judgment, the Director of Lands interposed an
appeal to the Court of Appeals which promulgated its
decision 18 on May 7, 1977, affirming the decision of the
lower court. It found that the defense of res judicata was
belatedly raised on appeal. The omission to include the
same in the answer as one of the affirmative defenses
constitutes a waiver of said defense. The manifestation of
Mr. Masicampo stating that the two (2) parcels of land
have been the subject of registration proceedings was not
enough to support res judicata. It concluded that the 30-
year period of continuous possession of private
respondents' predecessors-in-interest has been
satisfactorily proved, the Director of Lands not having
presented any evidence to contradict, impugn or impeach
the facts established by private respondents.
Hence, this petition which assigns the following errors:
I
 Respondent Court erred in ruling that petitioner
failed to raise the defense of res judicata in the
trial court and, hence, waived the same.
II
Respondent Court erred in ruling that petitioner
failed to prove res judicata by competent
evidence.
III
Respondent Court erred in ruling that after the
cadastral proceedings and the declaration of the
subject parcels of land as public land therein, the
same may be the subject of judicial confirmation
of imperfect title or claim based on adverse and
continuous possession of at least thirty (30)
years, citing the case of Mindanao v. Director of
Lands, et al., G.R. No. L-19535, July 10,
1967. 19
The Court of Appeals committed no error in
disregarding res judicata. In the case of Director of Lands
v. Court of Appeals, 20 this Court had addressed a similar
contention in this manner:
WE find no legal basis to uphold the foregoing
contentions of Petitioner. It is clear from the
evidence on record that in the proceedings had
before the Court of First Instance of Batangas,
acting as a land registration court, the oppositor
Director of Lands. petitioner herein, did not
 interpose any objection nor set up the defense of
res judicata with respect to the lots in question.
Such failure on the part of oppositor Director of
Lands. to OUR mind, is a procedural infirmity
which cannot be cured on appeal. Section 2,
Rule 9, Revised Rules of Court of 1964, in no
uncertain language, provides that:
SEC. 2. Defenses and obligations not
pleaded deemed waived. — Defenses
and objections not pleaded either in a
motion to dismiss or in the answer are
deemed waived; . . .
All defenses therefore not interposed in a motion
to dismiss or in an answer are deemed waived.
(Santiago, et al. v. Ramirez, et al.; L-15237, May
31, 1963, 8 SCRA 157, 162; Torrada v.
Bonearos, L-39832, January 30, 1976, 69 SCRA
247, 253).
Thus, the defense of res adjudicata when not set
up either in a motion to dismiss or in answer, is
deemed waived. It cannot be pleaded for the first
time at the trial or on appeal. (Phil. Coal Miners'
Union v. CEPOC, et al., L-19007, April 30, 1964,
10 SCRA 784, 789). (Emphasis supplied)
Furthermore, petitioner advanced the view that it is the
intendment of the law that a person who fails to prove his
title to a parcel of land which is the object of cadastral
proceedings or one who does not file his claim therein is
forever barred from doing so in a subsequent proceeding.
Judgment in a cadastral proceeding which is a proceeding
in rem constitutes res judicata even against a person who
did not take part in the proceedings as claimant.
We disagree. The above-cited case likewise settled this
contention. It said:
But granting for a moment, that the defenses
of res adjudicata was properly raised by
petitioner herein, WE still hold that, factually,
there is no prior final judgment all to speak
of. The decision in Cadastral Case No. 41 does
not constitute a bar to the application of
respondent Manuela Pastor; because a decision
in a cadastral proceeding declaring a lot public
land is not the final decree contemplated in
Section 38 and 40 of the Land Registration Act.
A Judicial declaration that a parcel of land is
public, does not preclude even the same
applicant from subsequently seeking a judicial
confirmation of his title to the same land,
provided he thereafter complies with the
provisions. of Section 48 of Commonwealth Act
No. 141, as amended, and as long as said public
land remains alienable and disposable (now
section 3 and 4, PD No. 1073,) 21 (Emphasis
supplied)
As a rule, the Court respects the factual findings of the
Court of Appeals, imparting to them a certain measure of
finality. However, the rule is not without clearly defined
exceptions, among which are: ". . . (2) the inference made
is manifestly mistaken; . . . (4) the judgment is based on
misapprehension of facts; . . . and (9) when the finding of
fact of the Court of Appeals is premised on the absence of
evidence and is contradicted by evidence on record." 22
It must be emphasized that the burden is on applicant to
prove his positive averments and not for the government
or the private oppositors to establish a negative
proposition insofar as the applicants' specific lots are
concerned. 23 Applying this rule to the instant case, the
conclusions reached by the court a quo and respondent
Court of Appeals that the private respondents through
their predecessors-in-interest have been in open,
continuous, exclusive and notorious possession of the
subject land under a bonafide claim of ownership are not
persuasive for the following reasons.
First, the testimony of Crisanto Angeles as to his
possession and ownership of the two (2) parcels of land
fails to inspire belief. He claimed that he was in
possession of the land way back in 1930. Yet he declared
the same for taxation purposes only in 1966. Although tax
receipts are not incontrovertible evidence of ownership,
they constitute at least proof that the holder had a claim of
title over the property. 24 He stated that he knew the
owners of the adjoining properties, but during the cross-
examination, he was unable to give their names. Nor was
he able to explain how he came into possession of the
parcel of land and there is no showing of any title, perfect
or imperfect, granted by the state to him or his
predecessors.
Second, the attempt of Monico Balila to corroborate
Angeles' length of possession over the subject property is
less than credible. Having been an adjoining owner only in
1953 by his own admission, he could not have known how
long Crisanto Angeles owned and possessed the parcels
of land.
Third, Pablito Punay, the second predecessor-in-interest
of Lot No. 2855 of the private respondents was not made
to testify. No reason was disclosed for his failure to appear
before the court.
Lastly, the documents introduced by the applicants merely
evidenced the fact that the parcels of land applied for were
alienable and disposable lands of the public domain,25 but
no document has been presented that would clearly
establish the length of time of the possession of their
predecessors-in-interest. That the private respondents
have paid the corresponding taxes since 1972 26 when
they possessed the same is of no moment because what
is vital to consider is their predecessors-in-interest's
compliance with the 30-year period.
Undoubtedly, the private respondents have failed to
submit convincing proof of their predecessors-in-interest's
actual, peaceful and adverse possession in the concept of
owner of the lots in question during the period required, by
law. This is of utmost significance in view of the basic
presumption that lands of whatever classification belong to
the State and evidence of a land grant must be "well-nigh
incontrovertible." 27
WHEREFORE, premises considered, the May 7, 1977
decision of the Court of Appeals is hereby REVERSED
and SET ASIDE, and judgment is rendered DISMISSING
the application for registration and confirmation of titles of
Lots No. 2855 and 2656. No pronouncement as to costs.
SO ORDERED.
Gutierrez, Jr., Feliciano, Bidin and Davide, Jr., JJ., concur.