The Case
Before us is a petition for review on certiorari^[1] seeking to reverse the Decision^[2] of the Court of Appeals dated 20 May 1999 in CA-G.R. SP No. 48682 as well as the Resolution dated 14 July 1999 denying the Motion for Reconsideration.  The Court of Appeals in its assailed decision affirmed the Decision of the Department of Agrarian Reform Adjudication Board^[3] ("DARAB") which reversed the Decision^[4] of the Municipal Agrarian Reform Office ("MARO") in Malaybalay, Bukidnon. The MARO of Bukidnon ordered the Department of Agrarian Reform ("DAR"), Agusan del Sur, to segregate 2,000 square meters from the land of the Spouses Bernabe and Conchita Valdez.  The MARO of Bukidnon also awarded the same segregated land to the Spouses Federico and Sarah Atuel and the Spouses George and Eliada Galdiano.

The Facts
The present controversy springs from a battle of possession over a portion of a property in Poblacion (formerly Sibagat Nuevo), Sibagat, Agusan del Sur.

Atty. Manuel D. Cab ("Cab") is the registered owner of two parcels of land in Poblacion, Sibagat, Agusan del Sur with an area of 125,804 square meters ("Cab Property").  The Cab Property is covered by OCT No. P-5638 issued pursuant to Free Patent No. 1318.  The Cab Property is traversed by the Butuan to Davao Road and adjacent to the municipal building of Sibagat.  From the Cab Property, Cab donated the lot occupied by the municipal building.^[5]

In 1964, Cab appointed Federico Atuel ("Atuel") as administrator of the Cab Property.

Sometime in 1977, Bernabe Valdez ("Valdez") arrived in Sibagat from Baogo Bontoc, Southern Leyte. Valdez is the nephew of Atuel, who recommended to Cab to lease a portion of the Cab Property to Valdez.^[6]   On 9 October 1978, Cab and Valdez entered into a "Lease of Improved Agricultural Land" under which Valdez leased a 1.25-hectare portion of the Cab Property for P300.00 per year for two years.

In 1982, Cab allowed the Spouses Federico and Sarah Atuel ("Spouses Atuel") and the Spouses George and Eliada Galdiano ("Spouses Galdiano") to occupy a 2,000-square meter portion of the Cab Property.  The Spouses Atuel and the Spouses Galdiano constructed their respective houses on this 2,000-square meter lot ("Subject Lot").

On 27 September 1985, the Sangguniang Bayan of Sibagat, Agusan del Sur, approved the town plan of the Municipality of Sibagat which classified the Cab Property as residential, subject to the approval of the Ministry of Human Settlements Regulatory Commission.

On 25 June 1988, Cab informed Valdez that their lease contract had already expired, and demanded that Valdez stop cultivating the 1.25-hectare portion of the Cab Property and vacate the same.

On 2 October 1988, responding to Cab's letter, the MARO of Sibagat, Agusan del Sur informed Cab that Valdez was properly identified as a tenant, and thus deemed to be the owner of the land he cultivated.  The MARO added that on 14 September 1988, pursuant to Presidential Decree No. 27, Emancipation Patent No. A-159969 was issued to Valdez for a 2.3231-hectare portion ("PD 27 Land") of the Cab Property.  The PD 27 Land included the 2,000-square meter Subject Lot occupied by the houses of the Spouses Atuel and the Spouses Galdiano.

On 11 May 1989, Cab filed with the DAR in Manila a petition for cancellation of Valdez's emancipation patent. Cab claimed that his property is not planted to rice and corn and that Valdez is a civil law lessee, not a tenant.^[7]  Consequently, the DAR ordered the Regional Director of Cagayan de Oro City to conduct an investigation regarding the petition.^[8]

On 17 September 1989, the Housing and Land Use Regulatory Board ("HLURB") approved the Town Plan and Zoning Ordinance of fifty-eight municipalities, including that of Sibagat. The HLURB classified the Cab Property as 90 percent residential, and the remaining portion as institutional and park or open space.

On 27 September 1991, the Spouses Bernabe and Conchita Valdez ("Spouses Valdez") filed a complaint^[9] for "Recovery of Possession with Damages" with the DARAB in Malaybalay, Bukidnon against the Spouses Atuel and the Spouses Galdiano. In their complaint, the Spouses Valdez alleged that the Spouses Atuel and the Spouses Galdiano "stealthily and through fraud entered and occupied a portion of the above-described property with an area of 2,000 sq. m. more or less." The Spouses Valdez claimed that the Spouses Atuel and the Spouses Galdiano, despite repeated demands, refused "to restore possession of the said portion of land" to the Spouses Valdez.  The Spouses Valdez prayed that the Spouses Atuel and the Spouses Galdiano be ordered to vacate and restore to the Spouses Valdez possession of the Subject Lot.   The Spouses Valdez also prayed for payment of litigation expenses, as well as unearned income from the Subject Lot and moral damages.

In their answer, the Spouses Atuel and the Spouses Galdiano asserted that the Spouses Valdez had no cause of action against them because Cab is the owner of the Subject Lot while Atuel is the administrator of the Cab Property.  The Spouses Atuel and the Spouses Galdiano claimed that upon Cab's instruction and consent, they had been occupying the Cab Property since 1964, long before the Spouses Valdez leased a portion of the Cab Property in 1978. The Spouses Atuel and the Spouses Galdiano also pointed out that the Spouses Valdez never set foot on the Subject Lot nor cultivated the same, thus, there is no dispossession to speak of.

Moreover, the Spouses Atuel and the Spouses Galdiano alleged that the emancipation patent issued to Valdez is null and void.  The Spouses Atuel and the Spouses Galdiano maintained that the entire Cab Property, which is covered by the Free Patent issued to Cab, has already been classified as residential, hence, no longer covered by PD No. 27.^[10]

On 4 March 1993, the DARAB Provincial Adjudicator, after hearing the case, issued a decision which disposed of as follows:

WHEREFORE, premises above considered, the DAR Agusan del Sur is hereby ordered to segregate the TWO THOUSAND (2,000) SQ. METERS, more or less, from the land of the complainants, Transfer Certificate of Title No. 1261 covered by Emancipation Patent No. A-159969, and award the same to the respondents; and hereby ordered this case dismissed.

SO ORDERED.^[11]

Dissatisfied with the decision, the Spouses Atuel and the Spouses Galdiano appealed to the DARAB Central Office. The DARAB Central Office reversed the decision of the DARAB Provincial Adjudicator, thus:

WHEREFORE, premises considered, the appealed decision is hereby REVERSED.  Judgment is hereby rendered as follows:

(1)     Enjoining the respondents-appellants from committing acts of intrusion and maintain the possessory rights of the complainants over the EP (Emancipation Patent) covered land; and

(2)     Ordering the MARO (Municipal Agrarian Reform Officer) or PARO (Provincial Agrarian Reform Officer) concerned to assist the parties in determining the amount to be reimbursed in favor of the respondents for whatever improvements made on the 2,000 square meter portion to be paid by the complainants.

SO ORDERED.^[12]

Aggrieved by the decision, the Spouses Atuel and the Spouses Galdiano filed a petition for review^[13] with the Court of Appeals.  On 20 May 1999, the Court of Appeals affirmed the decision of the DARAB Central Office and dismissed the petition for lack of merit. The Spouses Atuel and the Spouses Galdiano filed a Motion for Reconsideration which the Court of Appeals denied.  On 14 January 1998, while the case was pending in the Court of Appeals, the Spouses Valdez sold 5,000 square meters out of the PD 27 Land to the Municipality of Sibagat.^[14]

Hence, the instant petition.

The Ruling of the Court of Appeals
In affirming the decision of the DARAB, the Court of Appeals ruled that the DARAB has primary and exclusive jurisdiction over cases involving the issuance, correction and cancellation of emancipation patents.  The Court of Appeals held that the DARAB's decision should be respected because it enjoys the presumption of regularity.

The Court of Appeals also ruled that the DARAB correctly relied on  Pagtalunan v. Tamayo^[15] where this Court held that upon issuance of an emancipation patent, a holder acquires a vested right of absolute ownership in the land.

The Court of Appeals further held that the doctrine laid down in Teodoro v. Macaraeg^[16] is applicable.  In Teodoro, this Court ruled that a landowner has full liberty to enter into a civil lease contract covering his property.   However, "once a landowner enters into a contract of lease whereby his land is to be devoted to agricultural production and said landholding is susceptible of personal cultivation by the lessee, solely or with the help of labor coming from his immediate farm household, then such contract is of the very essence of a leasehold agreement."  Otherwise, the Court added, "it would be easy to subvert, under the guise of the liberty to contract, the intendment of the law of protecting the underprivileged and ordinarily credulous farmer from the unscrupulous schemes and pernicious practices of the landed gentry."^[17]

The Issue
After a review of the issues raised,^[18] the question boils down to whether the Spouses Valdez are entitled to seek redress from the DARAB in recovering possession of the 2,000-square meter Subject Lot from the Spouses Atuel and the Spouses Galdiano.

The Court's Ruling
We grant the petition based not on the arguments of the Spouses Atuel and the Spouses Galdiano but on an entirely different ground.  We reverse the decision of the Court of Appeals because of the DARAB's lack of jurisdiction to take cognizance of the present controversy.

The DARAB has no jurisdiction to take cognizance of the Spouses Valdez's complaint for recovery of possession of the Subject Lot.   Though the parties do not challenge the jurisdiction of the DARAB, the Court may motu proprio consider the issue of jurisdiction.^[19]  The Court has discretion to determine whether the DARAB validly acquired jurisdiction over the case. Jurisdiction over the subject matter is conferred only by law.  It may not be conferred on the court by consent or waiver of the parties where the court otherwise would have no jurisdiction over the subject matter of the action.^[20]

In their complaint for recovery of possession, the Spouses Valdez alleged, among others, that they are farmers and beneficiaries of an emancipation patent. The Spouses Valdez also alleged that the Spouses Atuel and the Spouses Galdiano stealthily and fraudulently occupied the 2,000-square meter Subject Lot.  The Spouses Valdez claimed that despite repeated demands,^[21] the Spouses Atuel and the Spouses Galdiano refused to vacate and restore possession of the Subject Lot to the Spouses Valdez.^[22] The Spouses Valdez prayed that the Spouses Atuel and the Spouses Galdiano be ordered to vacate and restore possession of the Subject Lot to the Spouses Valdez.

The Spouses Valdez did not allege the existence of tenancy relations, if any, between them and the Spouses Atuel and the Spouses Galdiano. In Morta, Sr. v. Occidental, ^[23] this Court ruled:

It is axiomatic that what determines the nature of an action as well as which court has jurisdiction over it, are the allegations in the complaint and the character of the relief sought. Jurisdiction over the subject matter is determined upon the allegations made in the complaint.

In the instant case, the allegations in the complaint, which are contained in the decision of the MARO,^[24] indicate that the nature and subject matter of the instant case is for recovery of possession or accion publiciana. The issue to be resolved is who between the Spouses Valdez on one hand, and the Spouses Atuel and the Spouses Galdiano on the other, have a better right to possession of the 2,000-square meter Subject Lot forming part of the PD 27 Land.  The Spouses Atuel and the Spouses Galdiano likewise raise the issue of ownership by insisting that Cab is the real and lawful owner of the Subject Lot.  In Cruz v. Torres,^[25] this Court had occasion to discuss the nature of an action to recover possession or accion publiciana, thus:

xxx This is an action for recovery of the right to posses and is a plenary action in an ordinary civil proceeding in a regional trial court to determine the better right of possession of realty independently of the title. Accion publiciana or plenaria de posesion is also used to refer to an ejectment suit filed after the expiration of one year from the accrual of the cause of action or from the unlawful withholding of possession of the realty. In such case, the regional trial court has jurisdiction. xxx^[26]

For the DARAB to acquire jurisdiction over the case, there must exist a tenancy relations between the parties.^[27] This Court held in Morta,^[28] that in order for a tenancy agreement to take hold over a dispute, it is essential to establish all its indispensable elements, to wit:

xxx 1) that the parties are the landowner and the tenant or agricultural lessee; 2) that the subject matter of the relationship is an agricultural land; 3) that there is consent between the parties to the relationship; 4) that the purpose of the relationship is to bring about agricultural production; 5) that there is personal cultivation on the part of the tenant or agricultural lessee; and 6) that the harvest is shared between the landowner and the tenant or agricultural lessee.

xxx^[29] (Emphasis supplied)

Emphasizing the DARAB's jurisdiction, this Court held in Hon. Antonio M. Nuesa, et al. v. Hon. Court of Appeals, et al.,^[30] that:

xxx the DAR is vested with the primary jurisdiction to determine and adjudicate agrarian reform matters and shall have the exclusive jurisdiction over all matters involving the implementation of the agrarian reform program."  The DARAB has primary, original and appellate jurisdiction "to determine and adjudicate all agrarian disputes, cases, controversies, and matters or incidents involving the implementation of the Comprehensive Agrarian Reform Program under R.A. 6657, E.O. Nos. 229, 228 and 129-A, R.A. 3844 as amended by R.A. 6389, P.D. No. 27 and other agrarian laws and their implementing rules and regulations. (Emphasis supplied)

Under Section 3(d) of Republic Act No. 6657, otherwise known as the CARP Law, an agrarian dispute is defined as follows:

(d)            xxx any controversy relating to tenurial arrangements, whether leasehold, tenancy, stewardship or otherwise, over lands devoted to agriculture, including disputes concerning farmworkers' associations or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of such tenurial arrangements.

It includes any controversy relating to compensation of lands acquired under this Act and other terms and conditions of transfer of ownership from landowners to farmworkers, tenants and other agrarian reform beneficiaries, whether the disputants stand in the proximate relation of farm operator and beneficiary, landowner and tenant, or lessor and lessee.

In the instant case, the Spouses Atuel and the Spouses Galdiano are not and do not claim to be the owners of the 2,000-square meter Subject Lot where their houses are constructed. They also do not claim ownership to any other portion of the PD 27 Land. They and the Spouses Valdez have no tenurial, leasehold, or any agrarian relations whatsoever that will bring this controversy within Section 3(d) of RA No. 6657.^[31] The instant case is similar to Chico v. CA,^[32] where this Court ruled that the DARAB had no jurisdiction over a case which did not involve any tenurial or agrarian relations between the parties.  Since the DARAB has no jurisdiction over the present controversy, it should not have taken cognizance of the Spouses Valdez's complaint for recovery of possession. Jurisdiction over an accion publiciana is vested in a court of general jurisdiction.^[33] Specifically, the regional trial court exercises exclusive original jurisdiction "in all civil actions which involve x x x possession of real property."^[34] However, if the assessed value of the real property involved does not exceed P50,000.00 in Metro Manila, and P20,000.00 outside of Metro Manila, the municipal trial court exercises jurisdiction over actions to recover possession of real property.^[35]  Moreover, the municipal trial court exercises jurisdiction over all cases of forcible entry and unlawful detainer.  

The Court of Appeals correctly stated that the DARAB has exclusive original jurisdiction over cases involving the issuance, correction and cancellation of registered emancipation patents.  However, the Spouses Valdez's complaint for recovery of possession does not involve or seek the cancellation of any emancipation patent.   It was the Spouses Atuel and the Spouses Galdiano who attacked the validity of the emancipation patent as part of their affirmative defenses in their answer to the complaint.  The rule is well settled that the jurisdiction of the court (or agency in this case) cannot be made to depend on the defenses made by the defendant in his answer or motion to dismiss. If such were the rule, the question of jurisdiction would depend almost entirely on the defendant.^[36]

Jurisdiction over the subject matter cannot be acquired through, or waived by, any act or omission of the parties.^[37] The active participation of the parties in the proceedings before the DARAB does not vest jurisdiction on the DARAB, as jurisdiction is conferred only by law.  The courts or the parties cannot disregard the rule of non-waiver of jurisdiction. Likewise, estoppel does not apply to confer jurisdiction to a tribunal that has none over a cause of action.^[38] The failure of the parties to challenge the jurisdiction of the DARAB does not prevent this Court from addressing the issue, as the DARAB's lack of jurisdiction is apparent on the face of the complaint.  Issues of jurisdiction are not subject to the whims of the parties.^[39]

In a long line of decisions, this Court has consistently held that an order or decision rendered by a tribunal or agency without jurisdiction is a total nullity.^[40] Accordingly, we rule that the decision of the DARAB in the instant case is null and void.  Consequently, the decision of the Court of Appeals affirming the decision of the DARAB is likewise invalid.  This Court finds no compelling reason to rule on the other issues raised by the Spouses Atuel and the Spouses Galdiano.

WHEREFORE, the petition is GRANTED.  The Decision of the Court of Appeals dated 20 May 1999 and the Resolution dated 14 July 1999 in CA-G.R. SP No. 48682 are REVERSED and SET ASIDE.  The MARO's Decision dated 4 March 1993, and the DARAB's Decision dated 17 June 1998, are declared NULL and VOID for lack of jurisdiction. No costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Vitug, Ynares-Santiago, and Azcuna, JJ., concur.

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^[1] Under Rule 45 of the Rules of Court.

^[2] Penned by Associate Justice Martin S. Villarama, Jr. with Associate Justices Angelina Sandoval-Gutierrez and Romeo A. Brawner, concurring.

^[3] Composed of Ernesto D. Garilao, Lorenzo R. Reyes, Artemio A. Adasa, Jr., Victor Gerardo J. Bulatao, Augusto P. Quijano, Sergio B. Serrano and Clifford C. Burkley.

^[4] Penned by Provincial Adjudicator Fidel H. Borres, Jr.

^[5] Rollo, pp. 13, 16.

^[6] Rollo, p. 145.

^[7] CA Rollo, pp. 60-61.

^[8] Ibid., p. 62.

^[9] Docketed as DARAB Case No. X-407 (Agusan del Sur).

^[10] CA Rollo, p. 49.

^[11] Ibid., p. 52-B.

^[12] Ibid., p. 46.

^[13] Under Rule 43 of the Rules of Court.

^[14] Annex "K," Rollo, p. 66.

^[15] G.R. No. 54281, 19 March 1990, 183 SCRA 252.

^[16] 136 Phil. 265 (1969).

^[17] Teodoro v. Macaraeg, ibid.

^[18] Petitioners' Memorandum, Rollo, pp. 148-150.

^[19] Lagman v. CA and Hon. Romero, etc., et al., 150 Phil. 1032 (1972); Government v. American Surety Co., 11 Phil. 203 (1908).

^[20] Rudolf Lietz Holdings, Inc. v. Registry of Deeds of Para?aque City, G.R. No. 133240, 15 November 2000, 344 SCRA 680.

^[21] The date of last demand is unclear but the Spouses Valdez made a demand sometime in 1990 as alleged in the petition (page 8) of the Spouses Atuel and the Spouses Galdiano.

^[22] CA Rollo, p. 48.

^[23] 367 Phil. 438 (1999).

^[24] CA Rollo, pp. 48-52-B.

^[25] G.R. No. 121939, 4 October 1999, 316 SCRA 193.

^[26] Cruz v. Torres, ibid.

^[27] Benavidez v. Court of Appeals, G.R. No. 125848, 6 September 1999, 313 SCRA 714; Isidro v. Court of Appeals, G.R. No. 105586, 15 December 1993, 228 SCRA 503.

^[28] Supra, see note 23.

^[29] Supra, see note 23.

^[30] G.R. No. 132048, 6 March 2002 citing Centeno v. Centeno, G.R. No. 140825, 13 October 2000, 343 SCRA 153.

^[31] Almuete v. Andres, G.R. No. 122276, 20 November 2001, 369 SCRA 619; Heirs of the Late Herman Rey Santos v. Court of Appeals, G.R. No. 109992, 7 March 2000, 327 SCRA 293.

^[32]  348 Phil. 37 (1998).

^[33] Laguna Estates Development Corporation v. Court of Appeals, G.R. No. 119357, 5 July 2000, 335 SCRA 29.

^[34] Section 19 (2) of BP Blg. 129, otherwise known as The Judiciary Reorganization Act of 1980, as amended by Republic Act No. 7691 (25 March 1994).

^[35] Ibid.

^[36] Multinational Village Homeowners' Association, Inc. v. Court of Appeals, G.R. No. 98023, 17 October 1991, 203 SCRA 104 citing Magay v. Estiandan, 69 SCRA 456.

^[37] Lagman v. CA and Hon. Romero, etc., et al., supra, see note 19.

^[38] Paguio v. NLRC, 323 Phil. 203 (1996).

^[39] Ibid.

^[40] AFP Mutual Benefit Association, Inc. v. NLRC, G.R. No. 102199, 28 January 1997, 267 SCRA 47.