NINTH DIVISION

[CA-G.R. SP No. 48927.  September 15, 2000.]

FARLEY T. GUSTILLO, petitioner, vs. DEPARTMENT OF AGRARIAN REFORM ADJUDICATION BOARD, GILBERT LOZADA, GIL LOZADA, CRISTOBAL MARIBAO, EMMA PECHON, MARINA BAÑARES, LILIA LOZADA and ARSENIO SACAPAÑO, JR., respondents.

D E C I S I O N

BARRIOS, J p:

The case before Us started with the complaint styled for CARP IMPLEMENTATION AND INJUNCTION filed by the private respondents as CARP farmer-beneficiaries and holders of Certificates of Land Ownership Award (CLOA) Nos. 00034079 and 00036528, covering Lots Nos. 984 and 2194 located in Brgy. Cabagna-an, La Castellana, Negros Occidental, against the petitioner. This was docketed with the Provincial Agrarian Reform Adjudicator as Case No. VI-183-NO-92, and in a Decision dated September 30, 1993 it was disposed that:

"WHEREFORE, premises considered, Decision is hereby ordered in favor of the complainants and against the respondent, to wit:

1.      Declaring the complainants as owners of the agricultural lands covered by TCT No. CLOA-469 and TCT N. CLOA-470 as well as the derivatives thereof;

2.      Ordering the respondent, his agents, representatives, agents and all other persons acting for his behalf to vacate said parcels of land and restore possession thereof to the complainants.

3.      No damages/cost.

SO ORDERED."

The petitioner appealed this to the public respondent Department of Agrarian Reform Adjudication Board (DARAB) where it was docketed as DARAB CASE NO 2565. In the Decision dated June 24, 1998 it affirmed the PARAD decision, the dispositive portion of which reads:

"WHEREFORE, premises considered, the appeal is DISMISSED for lack of merit and the Decision dated September 30, 1993 is hereby AFFIRMED with a further directive to the PNP of La Castellana, Negros Occidental to assist the DARAB Sheriff concerned in the enforcement of his Decision where necessary under the circumstances.

SO ORDERED."

Undaunted and persistent, the petitioner has filed with Us a petition for review under Rule 43 of the Rules of Court.

It should have been a petition for certiorari under Rule 65 for pursuant to the Comprehensive Agrarian Reform Law (RA No. 6657 or CARL) providing that appeals to the Court of Appeals should be by petition for certiorari if the case emanated from the DAR (Section 54), while it should be by petition for review if the case came from the Special Agrarian Courts (Section 60). This case originated from the DAR and hence is reviewable by certiorari and not by petition for review. Additionally, the petitioner failed to attach to his petition a written explanation why the service of the petition was not done personally in accordance with Sec. 11, Rule 13 of the 1997 Rules of Court.

These are procedural lapses already fatal to the petition. But still going on to the merits, We find too no basis to overturn the assailed decisions.

The private respondents complaint is based on the unlawful refusal of petitioner to recognize their rights as farmer-beneficiaries holding CLOAs and denying them the possession and cultivation of their landholdings. These are portions of foreclosed lots of the Philippine National Bank which it transferred to the DAR for CARP coverage.

Petitioner on the other hand asseverates inter alia that his possession of the parcels of land subject of this case is legal and in good faith. He set up as defenses litis pendentia, lack of jurisdiction, forum shopping, and failure to comply on the requirements of conciliation under P.D. Np. 1508. Litis pedentia because there are before the regular courts Special Civil Action No. 20 and Civil Case No. 230 both of which involve the disputed properties, and which were commenced prior to the filing of the complaint subject of this petition. And tagging along with that is forum shopping and the Board's lack of jurisdiction to entertain this case. Then there was no prior barangay conciliation before the filing of the complaint.

The issues as raised are as follows:

a.      IS IT PROPER FOR THE PARAD OR THE DARAB TO PROCEED WITH THE HEARING OF THE CASE FILED BEFORE IT NOTWITHSTANDING THE EARLIER FILING OF (2) CIVIL CASES AFFECTING THE SAME PARTIES AND PROPERTIES BEFORE THE REGIONAL TRIAL COURT? (LITIS PENDENTIA);

b.      IS PRIOR COMPLIANCE WITH THE REQUIREMENTS OF BARANGAY CONCILIATION UNDER PRESIDENTIAL DECREE 1508 OTHERWISE KNOWN AS THE KATARUNGANG PAMBARANGAY LAW ALSO REQUIRED IN CASES FILED BEFORE THE PARAD OR DARAB?

c.      DOES THE RULE PROHIBITING FORUM SHOPPING ALSO APPLY TO CASES FILED BEFORE ADMINISTRATIVE OR QUASI JUDICIAL AGENCIES, LIKE THE PARAD OR DARAB?

There is no dispute that the private respondents are the actual tillers of the subject areas, that they have been identified as such and issued their respective CLOAs in lots which have been placed under CARP coverage. Their cause of action then is established, and subject only to the defenses set up by the petitioner.

The burden of proof rests upon the party who asserts the affirmative of an issue. "In this case the burden lies on the complainant, who is duty bound to prove the allegations in the complaint. As this Court has held, he who alleges a fact has the burden of proving it and A MERE ALLEGATION IS NOT EVIDENCE." (Luxuria Homes, Inc. vs CA, G.R. No. 125986, Jan. 28, 1999) It them behooved Gustilo to prove the affirmative defenses he had raised and relied upon.

He claims litis pendentia, the requisites of which are as follows: a.) identity of parties, or at least such as representing the same interest in both actions; b) identity of rights asserted and relief prayed for, the relief being founded on the same facts; and c) identity in the two cases should be such that the judgment that may be rendered in the pending case, would, regardless of which party is successful, amount to res judicata in the other (Sempio vs. CA 284 SCRA 580) He should have gone beyond mere allegations and should have proven these elements. Instead nowhere in this petition is there attached a copy of a pleading, motion or other papers filed in the said cases as would show the nature or even the existence the supposed Civil Case No. 230 or Special Civil Action No 20. Such dearth of proof could not prove his defense of litis pendencia, and with it his concomitant defenses of forum shopping and lack of jurisdiction.

Gustilo raises too the defense of non-compliance with Presidential Decree No. 1508 in that there was no prior conciliation proceedings. It is well to note that PD 1508 on barangay conciliation proceedings has already been superseded by Republic Act 7160. The coverage of the extant conciliation requirement precludes disputes which are agricultural in nature or raising agrarian reform issues or arises from the implementation of the CARP Law, for which a different and specialized law applies. In line with this, Section 47 of Republic Act 6657, provides "the Barangay Agrarian Reform Council (BARC) shall endeavor to mediate, conciliate and settle agrarian disputes lodged before it within thirty (30) days from its taking cognizance thereof. If after the lapse of the thirty day period, it is unable to settle the dispute, it shall issue a certification . . . The said function of the BARC is with an exception though, specifically Par. 2, Sec. 2 of Rule III of the Revised Rules of Procedure (DARAB), which provides: — "Barangay Agrarian Reform Council Certification under these rules shall not be required in the following cases: . . . d.) where the matter at issue involves merely the administrative implementation of agrarian reform law, rule, guideline or policy; As the complaint of the private respondents stems from the implementation and enforcement of the Comprehensive Agrarian Reform Program which petitioner refuses to recognize, this case is outside the purview of the conciliation requirement.

Thus finding the petition deficient and unmeritorious —

WHEREFORE, it is DENIED DUE COURSE and DISMISSED.

SO ORDERED.

Verzola and Rosario, Jr., JJ., concur.