This petition for review on certiorari seeks to reverse the decision of the Court of Appeals^[1] in CA-G.R. CV No. 48567 affirming in toto the decision of the Regional Trial Court, Branch XXI, Santiago City, Isabela, in an action by private respondent against petitioners for legal redemption of real property pursuant to Articles 1620 and 1621 of the New Civil Code (Civil Case No. 21-0948).

The material antecedents as taken from the decision of the respondent Court of Appeals are:

Private respondent Nellie A. Manzano is a co-owner, together with her brothers and sisters Ernesto Manzano, Roland Manzano, Pamela Manzano and Edna Manzano of Lot No. 113, CCs-167, situated in Victory Norte, Santiago, Isabela. On or about April 12, 1988, while private respondent was abroad, her brothers and sisters sold the aforesaid property to petitioner Rolando Tinio, the son of the other petitioners, spouses Amado and Milagros Tinio, for the price of P100,000.00. In a forged "Affidavit of Waiver of Rights, Claim and Interest", private respondent was made to appear as having waived her rights over Lot No. 113 in favor of Rolando Tinio. Subsequently, on April 19, 1991, Rolando Tinio obtained a Miscellaneous Sales Patent over a portion of Lot No. 113, denominated as Lot No. 113-B, with an area of 105 square meters, from the Bureau of Lands. The patent was registered in the Registry of Deeds for the Province of Isabela, which issued Original Certificate of Title No. P-55907 in the name of Rolando Tinio. Upon private respondent's return to the Philippines in 1994, the plaintiff-appellee offered to redeem the shares of her co-owners pursuant to Articles 1620 and 1621 of the New Civil Code. Receiving no reply, private respondent filed an action for legal redemption before the trial court.

After trial, a decision was rendered by the court a quo in favor of private respondent, to wit:

"1. DECLARING that the plaintiff has the right of redemption over the shares of her co-owners to the properties which they sold to the defendants;

2. ORDERING the defendant Rolando Tinio to execute the necessary deed of sale of the properties in favor of the plaintiff Nellie Manzano;

3. AUTHORIZING the defendant Rolando Tinio to withdraw the amount of One Hundred Thousand Pesos (P100,000.00) which was deposited by the plaintiff representing the redemption price of the properties;

So Ordered."^[2]

On appeal, the aforesaid judgment was affirmed in toto by the Court of Appeals. With the denial of their motion for reconsideration, petitioners filed the instant petition for review, on the grounds that the Court of Appeals:

1. (Has) Decided a Question of Substance Not Heretofore Been Decided By The Honorable Supreme Court And Decided It On Mere Technicality By Declaring That Petitioners Could Not Raise The Issue That There Is No Legal Redemption Over A Land Of The Public Domain Because It Was Raised For The First Time On Appeal;
   
   
2. Gravely Erred In Not Considering The Letters of Respondent Nellie Manzano, Exhibits 1,2, and 3, Which Patently Prove That She Is Fully Aware Of The Sale Of The Land;
   
   
3. Grievously Erred In Not Admitting The RECEIPT, Annex 2 of the Motion for Reconsideration, As Newly Discovered Evidence Proving The Full Awareness of Nellie Manzano Of The Sale Of The Subject Land And Having Benefited Therefrom Is Estopped From Asserting Her Alleged Right Of Legal Redemption;
   
   
4. Gravely Erred In Ruling That The Trial Court Had Jurisdiction Over The Subject Land Which Under Existing Jurisprudence Lie Within The Exclusive Authority Of The Director Of Lands Under the Executive Department."^[3]

The petition is not impressed with merit.

In the interrelated first and fourth grounds, petitioners fault the respondent Court for its refusal to resolve the issue that the subject property is part of the public domain, hence, under the exclusive authority of the Director of Lands. Further, petitioners contend that a finding that the subject property is part of the public domain would negate co-ownership; sale by a private individual; and the right of legal redemption.

The Court of Appeals ruled in this wise:

"The argument that the land involved is land of the public domain is an issue being raised for the first time. Section 18, Rule 46 of the Revised Rules of Court (Sec. 15, Rule 44 of the 1997 Rules of Civil procedure) provides that the "appellant may include in his assignment of errors any question of law or fact that has been raised in the court below and which is within the issues framed by the parties." It is well-settled that issues not raised and/or ventilated in the lower court cannot be raised for the first time on appeal (Redodos v. WCC, 6 SCRA 7171, DBP v. CA, 116 SCRA 636, Galicia v. Polo, 179 SCRA 372). A look at the issues agreed upon by the parties in the lower court (supra) readily shows that the character of the land, whether of public domain or private ownership, is not among such issues.

Besides, having purchased the land from the brothers and sisters of the plaintiff-appellee, Rolando Tinio is now estopped from claiming that the latter had no rights over it."^[4]

We note that at the pre-trial of the case, the parties agreed among other matters that "the plaintiff is co-owner in equal shares with her brothers Ernesto Manzano and Roland Manzano and sisters Pamela Manzano and Edna Manzano of the properties enumerated in paragraph 2 of the second amended complaint"; and that "the co-owners of the plaintiff sold their share of the properties in favor of Rolando Tinio."

Likewise, the following issues were agreed upon during the pre-trial:

1. Whether or not the plaintiff can exercise her right of legal redemption of the properties of her co-owners under Article 1619 and 1620 of the New Civil Code;
   
   
2. Whether or not plaintiff's right to redeem expired;
   
   
3. Whether or not the plaintiff is in estoppel;
   
   
4. Whether there was a valid tender of payment;
   
   
5. Damages and attorney's fees."^[5]

Evidently, the petitioners having admitted that respondent Nellie Manzano along with her brothers and sisters were co-owners of the subject property; and that the former acquired it by sale from the brothers and sisters, banked on the lapse of the prescriptive period to exercise the right of legal redemption and the alleged knowledge and participation by respondent Nellie Manzano in the consummation of the sale including receipt of partial payment, as precluding her from exercising said right. Petitioners cannot now be allowed to escape the adverse effects of their defense by belatedly raising a new theory that the land is part of the public domain as this would be offensive to the fundamental tenets of fair play.

It is worthy of mention that:

"A pre-trial is meant to serve as a device to clarify and narrow down the basic issues between the parties, to ascertain the facts relative to those issues and to enable the parties to obtain the fullest possible knowledge of the issues and facts before civil trials and thus prevent that said trial are carried on in the dark. Pre-trial is primarily intended to make certain that all issues necessary to the disposition of a case are properly raised. Thus, to obviate the element of surprise, parties are expected to disclose at a pre-trial conference all issues of law and fact which they intend to raise at the trial, except such as may involve privileged or impeaching matters. The determination of issues at a pre-trial conference bars the consideration of other questions on appeal."^[6]

Further, the applicable and well-settled principle is that "a party is bound by the theory he adopts and by the cause of action he stands on and cannot be permitted after having lost thereon to repudiate his theory and cause of action and adopt another and seek to re-litigate the matter anew either in the same forum or on appeal."^[7] This is in essence putting petitioners in estoppel to question the judgment.

As for the question of jurisdiction, we agree with the appellate court that what is involved in this case is not jurisdiction to dispose public lands which is exclusively vested with the Director of the Bureau of Lands, but the right of legal redemption given to a co-owner of a parcel of land. Jurisdiction is determinable on the basis of the allegations in the complaint.^[8] The character of the land as being part of the public domain could not be impliedly included nor could it be inferred, as contended by petitioners, on the first issue of "whether plaintiff can exercise her right of legal redemption of the properties of her co-owners under Articles 1619 and 1620 of the New Civil Code." Neither could statements and/or references in the pleadings and subsequently in the judgments of the lower courts that "Rolando Tinio obtained a Miscellaneous Sales Patent" over the subject property be sufficient to consider the issue as having been raised, or that such fact was already within the knowledge of the courts which should have been adjudicated upon. Verily, herein petitioners as defendants in the court a quo stipulated on the co-ownership by the Manzano siblings and the acquisition by sale of the subject property from the said co-owners. Now that petitioner Rolando Tinio had acquired a certificate of title of the subject property in his name, the same has become private property beyond the control or jurisdiction of the Bureau of Lands.^[9]

As regards the second ground, the issue as to whether Nellie Manzano was fully aware of the sale of the land is a factual matter. In this regard, the Court of Appeals affirmed the following findings of the court a quo:

"It is clear that the plaintiff was not apprised of the consummated sale. In fact, she did not even know the actual vendee until after she filed the complaint. Concededly, the plaintiff was aware of the negotiations for the sale of the properties by her co-owners for which reason she asked the prospective vendees to wait for her arrival in order that they could talk about the sale. But her awareness of the intention to sell by her co-owners cannot take the place of actual knowledge because it was not shown that she had anything to do with the negotiations and the consummation of the sale. On the contrary what was shown is that the defendants tried to conceal the sale and even attempted to deprive the plaintiff of her share in the property by causing the preparation of a falsified affidavit of assignment of rights and then obtain a sales patent and a certificate of title over the land to the exclusion of the plaintiff even though they knew very well that she did not sell her share of the property to them. It was not only the right of the plaintiff to redeem which the defendants suppressed but even her very right to the property." (pp. 38-39, Rollo).^[10]

It is axiomatic that only questions of law, not questions of fact, may be raised before the Supreme Court in a petition for review under Rule 45 of the Rules of Court.^[11] This Court can no longer be tasked to go over the proofs presented by the petitioners in the lower courts and analyze, assess and weigh them to ascertain if the court a quo and the appellate court were correct in their appreciation of the evidence.

As regards the third ground, petitioners fault the Court of Appeals for not admitting the receipt attached to their motion for reconsideration filed before the same court as "newly discovered evidence" - an alleged letter of private respondent Nellie Manzano in which she acknowledges receipt of P3,000.00 as part payment of the subject property. This is to support their argument that no legal redemption can be exercised by respondent Manzano because she participated in the sale as vendor and is therefore estopped.

Section 1, Rule 53 of the 1964 Rules of Court, as amended, reads:

"SECTION 1. Petition.- Before a final order or judgment rendered by the Court of Appeals becomes executory, a motion for a new trial may be filed on the ground of newly discovered evidence which could not have been discovered prior to the trial in the court below by the exercise of due diligence and which is of such a character as would probably change the result. The motion shall be accompanied by affidavits showing the facts constituting the grounds therefor and the newly discovered evidence."

Instead of filing a motion for reconsideration and merely attaching thereto an alleged "newly discovered evidence", petitioners should have filed a motion for new trial on the ground of newly discovered evidence in accordance with the aforequoted Rule 53 of the 1964 Rules of Court.^[12] Petitioners failed to support their motion with affidavits and to show compliance with the following requisites for newly discovered evidence as a ground for new trial: (a) the evidence was discovered after the trial; (b) such evidence could not have been discovered and produced at the trial with reasonable diligence; and (c) that it is material, not merely cumulative, corroborative or impeaching, and is of such weight that, if admitted will probably change the judgment.^[13]

Moreover, the Court of Appeals correctly pointed out that the letter-receipt does not identify the house and lot referred to therein, and that assuming it is signed by respondent Nellie Manzano, it does not show that she received P3,000.00 as payment for her share of the subject property, but the amount was to be given to Mrs. Edna M. Perez.

In fine, we find no reversible error in the judgment appealed from.

WHEREFORE, the PETITION is DENIED for lack of merit.

SO ORDERED.

Romero, (Chairman), Vitug, and Panganiban, JJ., concur.
Purisima, J., took no part in the deliberation.

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^[1] Special Twelfth Division, composed of Associate Justices Hector L. Hofilena (Acting Chairman and ponente), Romeo J. Callejo, Sr. and Artemio G. Tuquero.

^[2] Rollo, p.11.

^[3] Ibid., at pp.13-14.

^[4] Rollo, pp. 32-33.

^[5] Rollo, p. 3.

^[6] Son v. Son, 251 SCRA 556, 564 (1995)

^[7] Arroyo v. House of Representatives Electoral Tribunal 246 SCRA 384, 403 (1995), citing Bashier v. COMELEC, 43 SCRA 238, 266

^[8] De Leon v. CA 245 SCRA 166 (1995).

^[9] Director of Land Management vs. Court of Appeals, 205 SCRA 486.

^[10] Rollo, p. 31.

^[11] National Steel Corporation v. Court of Appeals, 283 SCRA 45(1997).

^[12] Under the 1997 Revised Rules of Civil Procedure, a motion for new trial should be filed at any time after the appeal from the lower court has been perfected and before the Court of Appeals loses jurisdiction over the case (Section 1, Rule 53).

^[13] CIR v. A. Soriano Corporation, 267 SCRA 313 (1997).