SIXTEENTH DIVISION
[CA-G.R. CV No. 47488. October 16, 1996.]
RAMONCITO AGNIR, through his Attorney-in-Fact, ANGELINA AGNIR, plaintiff-appellee, vs. ASUNCION REYES, defendant-appellant.
R E S O L U T I O N
TUQUERO, J p:
Appealed to this Court is the Order dated January 24, 1994 of the Regional Trial Court, 5th Judicial Region, (Branch 52, Sorsogon, in Civil Case No. 92-5760, denying due course to defendant's prayer for the dismissal of the case for lack of jurisdiction invoked as an affirmative defense in her Answer to the Complaint.
The relevant facts are not in dispute.
Plaintiff Ramoncito Agnir, through his attorney-in-fact Angelina Agnir, filed a complaint for Quieting of Title With Prayer for Issuance of Writ of Preliminary Injunction before the Regional Trial Court of Sorsogon against, defendant Asuncion Reyes, which is docketed as Civil Case No. 92-5760.
Ramoncito Agnir, is the owner of a coconut land consisting of 52.697 square meters, situated at Sitio Mapili, Rangas, Juban, Sorsogon. He acquired ownership over the said land by virtue of a deed or absolute sale dated October 20, 1988, executed by his parents.
Angelina Agnir and Loreto Reyes are brother and sister. Loreto Reyes was married to Asuncion Reyes. In 1963, Angelina Agnir allowed his brother Loreto Reyes to occupy the land in question on condition that the same would only be temporary as the property would be taken back by her after all her brother's children shall have finished college.
In 1989, Loreto Reyes died. Thereafter, Angelina Agnir sent a letter to Asuncion Reyes asking the latter to vacate the property considering that her children had all finished college. Asuncion Reyes requested for another ten (10) years extension to stay, to which request Angelina did not agree.
Not heeding the demand letter to vacate, Asuncion Reyes has continuously cultivated the land and harvested therefrom. Such continuous cultivation and harvest constitute a cloud on Ramoncito Agnir's title and ownership.
Traversing the material allegations in the complaint, defendant claims that there exists a tenancy relationship between the parties and, therefore, the court a quo has no jurisdiction to take cognizance of the case.
On the other hand, plaintiff asserts that neither defendant nor her late husband Loreto Reyes was instituted as tenant, thus belying the landlord and tenant relationship.
The court a quo, by agreement of the parties, set for hearing the affirmative defense of lack of jurisdiction interposed by defendant.
After due hearing, the court a quo in its Order dated January 24, 1994 denied due course to defendant's affirmative defense for want of prima facie proof that tenancy relationship exists between the parties.
Aggrieved, defendant interposed this appeal claiming that the court a quo erred: (a) in declaring that no tenancy relation exists between plaintiff and defendant, and (b) in its claim that it has jurisdiction to try the case despite the presence of overwhelming evidence of tenancy relationship.
Defendant's recourse to this Court through her appeal is erroneous. Having pleaded lack of jurisdiction as an affirmative defense in her answer and a preliminary hearing having been held thereon, defendant may be considered as having filed a motion to dismiss (Rule 16, section 5, Rules of Court). It is settled that an order denying a motion to dismiss is interlocutory and not appealable but if grounds are indubitable, certiorari and prohibition may be available (Alice Van Doen v. Romillo, 139 SCRA 149; Newsweek v. IAC, 142 SCRA 177)
Indeed, the questioned order is interlocutory and thus, not subject to appeal. In this regard, Section 4 of Circular No. 2-90 provides that "an appeal taken to either the Supreme Court or the Court of Appeals by the wrong or inappropriate mode shall be dismissed". AIDTSE
WHEREFORE, premises considered, the instant appeal is hereby DISMISSED pursuant to Section 4 of Circular No. 2-90. Accordingly, the records of the case are remanded to the trial court for further proceedings.
SO ORDERED.
Garcia and Labitoria, JJ., concur.