Appeal from  the decision of the Court First Instance of Leyte in its Civil Case No. 776, annulling the previous final judgment rendered by it in Civil Case No. 578, ordering the partition of certain parcels of land.

It appears that on September 29, 1949, appellants filed with the  Court  of  First  Instance  of Leyte a complaint against appellees (Civil Case No. 578) for partition of 11 parcels of land  described therein.   (Record on Appeal, pp. 8-11).  The defendants in said case (appellees herein) were declared in default for failure to file their answer within the reglementary period, in spite of summons duly served upon  them (Exh.  1, p.  1, Records).  Trial having been had, the court rendered judgment, on December  22, 1949, finding (1) that all the  parcels of  land  described in the complaint belonged originally to the deceased spouses Mauricio Aragon and Leona Ingay (parents of the parties-litigants) ;  (2)  that plaintiffs  and  defendants  were  co-owners thereof,  and (3) ordering  the partition of said eleven  (11) parcels among them.   (Record on Appeal, p. 11)

For  failure  of the parties  to amicably partition  the properties among themselves, the court appointed commissioners to effect such partition.   (Exhibit 3, p. 3, Records) The  commissioners  submitted a project  of partition on March 11, 1950 which  was approved by the  court on April 1,  1950.   (Exhibits 5, 9,  11,  p. 17, Records)

In two separate petitions (Exhibits 10  and  13,  pp. 13 and  19,  Records), the then defendants (now appellees) sought the judgment to be set  aside on  the  ground of excusable neglect under  Rule 38 of the  Rules  of Court. Both motions were denied.  (Exhibits 12  and  14,  pp. 18 and  25,  Records).  A petition to set aside the order of the court approving the project of partition (pp. 22-23, Records) was likewise denied (Exhibit 14, p. 25, Records). No appeal was taken,  and the judgment became final. Consequently,  a writ of execution  (Exhibits 15  and 16, pp.  26 and 27, Records)  was issued by the  court, by virtue of which  the sheriff placed the parties in  possession of the respective portions alloted to them in the  project of partition (Exhibit 17, pp.  28-30, Records).  The then defendants  refused  to receive  their  respective portions (pp. 31-33, Records) and, instead,  filed the instant action to annul the final judgment in said Civil Case No.  578, on the ground of lack of jurisdiction on the part of the trial court which rendered it.

A motion  to dismiss,  dated February 15,  1951,  (pp. 14-19, Record on  Appeal), on the ground of res judicata having been denied by the court on March 12, 1951 (Record on  Appeal, pp. 24-25), defendants-appellants  (successful plaintiffs in the previous case No. 578) filed their answer, dated March  20,  1951,  (Record  on Appeal,  pp. 25-28) and after  trial the court below  rendered  the decision appealed from (1)  declaring the judgment in Civil  Case No. 578 null and void insofar as it declares that plaintiffs-appellees and defendants-appellants are the co-owners  of lots (a) and  (d)  described in the  complaint for partition in  Case No.  578,  for lack of jurisdiction;  (2) affirming the ownership of  plaintiffs-appellees Conrado Aragon and Francisco Aragon  over said lots (a) and (d); (3) declaring the project of partition null and void, for being inequitable, and (4) ordering the parties to make  a new project  of partition of the rest of the properties, excluding therefrom lots (a) and  (d), within 30 days from the finality of the decision.  The defendants directly appealed to this  Court on  points of law.

The issue herein  presented  is whether or not the trial court could still  nullify  or annul, in whole or in  part, the decision in Civil Case  No. 578.

There can be no question that the trial court had jurisdiction  to take cognizance of the  partition proceedings in Civil Case  No.  578.  This much has been conceded when the trial  court did  not declare the decision  therein null and void in toto, for lack of jurisdiction.  It only declared null and  void that  portion relating to  lots  (a) and (d) insofar as  it declared all the parties in  Case No. 578 co-owners thereof, on the theory that the Torrens Certificates of Title covering these  lots, and  standing solely in the name of Francisco and Conrado Aragon, are conclusive of  the ownership  of the  same, and to declare the parties co-owners of lots (a) and (d)  would be  "to  amend or alter the decision of the Cadastral Court  in Cases Nos. 34 and 26, with  respect to the above-mentioned parcels," (Appellees'  Brief, p. 5).  We  disagree.  Civil Case  No. 578 was not one for the alternation or amendment of the decision or decree in the cadastral case but for the partition of properties among  the co-owners.  The circumstance that lots  (a)  and (d) are registered in the name of two of the co-owners alone does not  preclude the court from including and dealing with said  lots in the partition proceedings (Act 496, sec 70; Dayao vs.  Aming,  74 Phil. 114). The rule is well settled  that  the registration of a parcel of land in the  name  of one  of the co-owners does  not preclude the court, in the exercise of its equity jurisdiction, from compelling the registered owner to reconvey the right, interest,  share and participation in the  registered parcel of the one lawfully  entitled thereto.  (Sahagun vs. Gauiran, 93 Phil., 227; 50 Off. Gaz., No. 10, p. 4316).   Hence, when the trial court declared the parties to be co-owners of  the  eleven parcels subject of  the former partition proceedings,  it in  effect declared that Francisco  Aragon  and Conrado Aragon,  the registered owners  of  lots (a) and  (d), were holding the lots in trust for the other co-owners.  This4was  justified  by  the  fact that, in spite of the summons served upon  them in Civil Case No. 578, said appellees  preferred to remain silent, without  even caring to file their answer, thereby making the court believe that all the eleven parcels were common property of the parties to Case No. 578.

If there was any error in the decision in  Civil Case No. 578, the same should have been corrected on appeal.   Appellees' contention that they could not have appealed because they had no more standing  in court, having been declared  in default,  and because their petitions for relief under  Rule  38 of the  Rules of Court had been denied,  is likewise untenable.  The rule is well  established  that appeal, not a separate action is the proper remedy for questioning the validity of a judgment, upon the denial of a petition for relief under Rule 38 of the Rules of Court.

"Not having  appealed from the order  denying  the  motion for relief under Rule 38, the plaintiff is precluded from questioning, in a separate action, the validity of  the judgment sought to be annulled and set  aside."  (De la Paz vs. Hiring,  et al.  [Syllabus], 96 Phil., 733; 51 Off. Gaz., No. 5, 2419.)

Hence, because of appellees' failure to appeal the orders denying their petitions  for relief,  the decision in  Civil Case  No. 578, no  matter how erroneous it might  be, has become final  (Mandac vs. Gumarad,  87 Phil., 278; 47 Off. Gaz. [Supp. 12,] 449; Daquis vs. Bustos, et al., 94 Phil., 913 50 Off. Gaz., No. 5, 1964) and is now conclusive and binding upon them not only with respect to questions actually contested and determined therein, but upon all matters, either factual or  legal,  which might have  been litigated and decided in that suit (People vs. Sales, L-8925,  May 21, 1956; Jalandoni vs. Martir-Guanzon, 102 Phil., 859; 54 Off. Gaz.,  [5]  2907;  Velasquez vs.  Gil, 99 Phil., 457;  53 Off. Gaz.  [17]  5615; Namarco vs.  Macadaeg,  et al.,  98 Phil.,  185;  52 Off. Gaz. No.  1, 182),  pursuant to the principle  of res judicata or estoppel by judgment.

"It  is a finality as to  the claim or demand in controversy, concluding parties and those in privity with  them,  not  only as to every matter which  was  offered and received to sustain or defeat the claim or demand, but as to any other admissable matter which might have been offered for that purpose."  (Miranda vs. Tiangco, et al.,  96 Phil., 526; 51  Off. Gaz. [3], 1366).

In  as much  as the ownership of  the eleven  parcels, including  lots  (a) and (d),  in  Civil Case No. 578 was necessarily litigated and in fact actually decided  therein, the same  can  no longer be  litigated  in  the instant case without doing violence to the principle above referred to.

Wherefore, the decision appealed  from is set aside  and the complaint  dismissed, with costs in this instance.   So ordered.

Paras, C. J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador, Concepcion, and Endencia, JJ., concur.