Frondarina vs. Malazarte, G.R. 148423, 12/6/06* ESPERANZA G. FRONDARINA, G.R. No. 148423 joined by her husband, PEDRO A. FRONDARINA, Petitioners, Present: QUISUMBING, J., Chairperson, - versus - CARPIO, CARPIO MORALES, TINGA,* and VELASCO, JR., JJ. NAPOLEON MALAZARTE Promulgated: and LAURA P. MALAZARTE, Respondents. December 6, 2006 x-----------------------------------------------------------------------------------------x D E C I S I O N VELASCO, JR., J.: There is no standard by which the weight of conflicting evidence can be ascertained. We have no test of the truth of human testimony except its conformity to our knowledge, observation, and experience.[if !supportFootnotes][1][endif] The Case This petition for review seeks to overturn the Decision of the Court of Appeals (CA) in CA-G.R. SP No. 61335 which sustained the Olongapo City Regional Trial Courts dismissal of the forcible entry complaint originally filed by petitioners Frondarina spouses against the respondent Malazarte spouses in Civil Case No. 2853 before the Olongapo City Municipal Trial Court in Cities (MTCC). The Facts

Evidence culled from the records of the Olongapo City MTCC[if !supportFootnotes][2][endif] shows that on July 22, 1970, Lot 5, Block 15-B, Gordon Heights Subdivision, Olongapo City (disputed lot), with an area of 450 square meters, was acquired by Flordelina Santos from Iluminado Amar. On June 17, 1971, Cirila Gongora, petitioner Esperanza Frondarinas sister, in turn, acquired the disputed lot from Santos, as shown in the Deed of Transfer of Possessory Right over a Lot (Exhibit B). On the same date, Gongora, as Esperanza Frondarinas predecessor-in-interest, filed a Miscellaneous Sales Application (MSA) (Exhibit D) with the Bureau of Lands.

The disputed lot was also declared in Gongoras name for taxation purposes under Tax Declaration No. 32821 in 1970 (Exhibit E), under Tax Declaration No. 16-0611 in 1974 (Exhibit F), and under Tax Declaration No. 16-0431 in 1980 (Exhibit

G). She also paid the real estate taxes due on said property as shown by the April 12, 1985 Official Receipt No. 7841503, representing real estate taxes on the property for the years 1980 to 1985 (Exhibit H).

Petitioner Esperanza Frondarina, in turn, obtained the disputed lot from her sister, Cirila Gongora, on February 19, 1985, as evidenced by the Waiver and/or Renunciation of Rights to a Parcel of Land (Exhibit A). On July 1, 1985, said petitioner likewise filed an MSA with the Bureau of Lands over the disputed lot.

Petitioner Esperanza Frondarina also declared the disputed lot in her name in 1986 under Tax Declaration No. 004-3574 (Exhibit J) and paid real estates taxes on the property for the years 1986 to 1988 (inclusive of Exhibits K to K-3). She also had the lot surveyed (inclusive of Exhibits L, L-1, M, N, N-1, N-2, and O), fenced it with four (4) strands of barbed wire, and tended two (2) mango and one (1) coconut trees and planted different kinds of vegetables on the lot.

Meanwhile, respondents Malazartes alleged that on March 1, 1988, they bought the said lot from Romeo Valencia (Exhibit S); and that they resided on the lot since May 1988. On the said date, respondents immediately started the construction of their house on the lot without a building permitas their application was denied due to petitioners complaint. They also admitted that an employee of the City Engineers Office told them to stop the construction because of the complaint and absence of a building permit.

In the meantime, the records reveal that on March 18, 1988, after they allegedly bought the said lot, respondents threatened petitioners caretaker, Lorenza Andrada. More so, according to petitioner Esperanza Frondarina, in her testimony, the respondents dug holes to put up posts, riprapped the rear of the lot, and deposited hollow blocks to construct a house. On March 28, 1988, when confronted by petitioners Frondarinas on why they entered petitioners lot, respondents replied that they got permission to enter the land from Mr. Valencia, as they had bought it from him. Petitioners then reported the matter to the City Engineers Office; and Mr. Malik of said office went to the said place and told the respondents to stop the construction of the house as they had no building permit.

The respondents, however, continued the construction on the lot as shown in the photographs taken by petitioner Esperanza Frondarina on May 18, 1988 (Exhibits T, T-1, T-2, and T-3). Aggrieved, on April 5, 1988, petitioners sent a letter request to City Engineer Nicolas D. de Leon (Exhibits P, P-1, and S); and on April 28, 1989, they also sent letters to then Mayor Richard Gordon and Atty. Ma. Ellen Aguilar about respondents intrusion on their lot (Exhibits R and Q, respectively).

Furthermore, the Olongapo City MTCC found that respondents witness, Romeo Valencia, admitted that his possession of the disputed lot had already been questionedfor almost three (3) yearsby petitioners before he sold it to respondents.[if !supportFootnotes][3][endif] Thus, according to the MTCC, it is very clear from the evidence that [petitioners] did not only have prior possession of the subject lot, but it is also clear that the possession of the land by [petitioners][if !supportFootnotes][4][endif] was not adverse, uninterrupted, open and in the concept of owners.

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The Ruling of the Olongapo City MTCC Finding that the totality of evidence preponderates in favor of [petitioners Frondarinas] who have sufficiently established their cause of action against [respondents Malazartes],[if !supportFootnotes][5][endif] the MTCC rendered its February 28, 2000 Decision in favor of petitioners, the fallo of which reads: WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the defendants, as follows:

1. ordering the defendants and all and any other persons claiming under them to vacate the parcel of land located at No. 5 Latires Street, Gordon Heights, Olongapo City, also identified as Lot 5, Block 15-B, Gordon Heights Subdivision, Gordon Heights, Olongapo City, with an area of 450 square meters, declared in the name of plaintiff Esperanza G. Frondarina under Tax Declaration No. 004-3574 and more particularly described under paragraph 2 of the complaint, and to deliver its possession to the plaintiffs;

[if !supportLists]2. [endif]ordering the defendants to remove from the subject premises all constructions that they built thereat;

3. ordering the defendants, jointly and severally to pay unto the plaintiffs actual damages in the amount of P3,000.00 and reasonable rentals of P500.00 every month from the time of forcible entry on March 18, 1988 until the time defendants have vacated the premises and delivered possession thereof to the plaintiffs; and

4. ordering the defendants to pay jointly and severally, unto the plaintiffs the sum of P15,000.00, as attorneys fees, plus costs.[if !supportFootnotes][6][endif]

On April 26, 2006, respondents Malazartes filed a Notice of Appeal[if !supportFootnotes][7][endif] from the adverse Decision of the Olongapo City MTCC with the Olongapo City Regional Trial Court (RTC) Branch 72. The Ruling of the Olongapo City RTC

Upon respondents appeal, the Olongapo City RTC Branch 72 arrived at factual findings[if !supportFootnotes][8][endif] diametrically opposed to the facts culled by the Olongapo City MTCC. According to the trial court, it was convinced that respondents were in actual and physical possession of the disputed lot through their predecessor-in-interest, Romeo Valencia; because they bought it from him on March 1, 1988 and they started to occupy the disputed lot on March 18, 1988 according to the testimony of Laura Malazarte. The trial court said that this [testimonial evidence] is the strong point in the evidence on record in favor of the [respondents]. The trial court further discoursed that:

[P]laintiffs failed to prove, with preponderance of evidence, that they were in actual and physical possession of the subject land. The plaintiffs were not in personal actual and physical possession of the subject land. The plaintiffs possession was through a caretaker. Esperanza Frondarina testified on this fact:

Q Did you occupy the property after it was sold to you by your sister?

A I have a caretaker, sir.

Q What is the name of your caretaker Mrs. Witness?

A Andrada sir.

(TSN, p. 4, Nov. 16, 1989).

The plaintiffs have only hearsay knowledge of who planted the two mango trees and one coconut tree.

Q Mrs. Frondarina, do you know who planted this two mango trees and one (1) coconut tree?

A Santos [Flordelina] from whom my sister bought the lot sir.

x x x

Q You were there present when these trees were planted Mrs. Witness?

A I was not present sir.

(TSN, pp. 11 to 12, Nov. 16, 1989).

The evidence of the plaintiffs in the imputed forcible entry sometime on March 18, 1988 was also hearsay. Mrs. Esperanza Frondarinas

testimony went this way:

Q You said that you a have a caretaker of this lot on or about

March 18, 1988, how was it possible for the Malazarte

to enter your lot if you a have a bantay there?

A My caretaker told me that she was being threatened.

Q Who threatened her?

A She told that she was threatened by the Malazarte and

certain Mr. Valencia.

(TSN, p. 21, Nov. 16, 1988).

Moreover, the trial court reasoned that petitioners pieces of evidence on the issues of possession and forcible entry were of hearsay naturewhich could have been remedied by presenting their caretaker, Andrada, who, according to the trial court, was not presented as witness. Further, the Olongapo City RTC stated that petitioners did not explain why their caretaker could not testifywhich led to its presumption that if Andrada is presented, her testimony will be adverse to the cause of [petitioners]. Thus, it found that the respondents were in personal, actual, and physical possession of the disputed lot; they did not commit forcible entry; and the evidence on record supported their cause. On September 13, 2000, the Olongapo City RTC rendered a Decision in favor of respondents Malazartes: WHEREFORE, judgment is hereby rendered reversing in toto the Decision in Civil Case No. 2853 and a new decision is issued dismissing the complaint. The plaintiffs are ordered to pay the defendants the sum of P6, 400.00 by way of attorneys fees; and the costs of this suit.[if !supportFootnotes][9][endif]

Unconvinced, the Frondarina spouses filed a petition for review[if !supportFootnotes][10][endif] with the CA on November 8, 2000 which was docketed as CA-G.R. SP No. 61335. The Ruling of the Court of Appeals Finding no reversible error in the Olongapo City RTCs ruling, the Court of Appeals

(CA) on March 13, 2001 rendered a Decision affirming in toto[if !supportFootnotes][11][endif] the September 13, 2000 Decision of the trial court. The CA sustained the findings and conclusions of the Olongapo City RTC that petitioners Frondarina spouses failed to prove that they were in actual and physical possession of the disputed lot. It ruled that the Frondarina spouses possession was through a caretaker, Lorenza Andrada, who did not appear as witness because of alleged threats made by respondents Malazartes and their predecessor-in-interest, Romeo Valencia. However, the court a quo concluded that petitioner Esperanza Frondarinas testimony on the alleged threat to her caretaker, Andrada, constituted hearsay evidence, as it was based on the personal knowledge of said petitioner. Thus, the CA declared that respondents Malazartes imputed forcible entry was not supported by evidence on record.[if !supportFootnotes][12][endif] Aggrieved, petitioners Frondarina spouses filed the instant petition for review on July 11, 2001 raising the following issues:[if !supportFootnotes][13][endif]

I - THE COURT OF APPEALS RENDERED THE DECISION IN GRAVE ABUSE OF ITS DISCRETION IN THE APPRECIATION OF FACTS;

II - THE AFFIRMING DECISION OF THE COURT OF APPEALS OMITTED PETITIONERS PRIOR, ACTUAL POSSESSION ON THE DISPUTED PROPERTY, ESSENTIAL TO THE ISSUE IN FORCIBLE ENTRY;

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III - THE APPELLATE DECISION RENDERS RECOGNITION OF PRIVATE RESPONDENTS UNLAWFUL ENTRY AS LAWFUL, DISREGARDED THE MENACING ATTITUDE [OR] INTENT TO FORCIBLY ACQUIRE THE LAND BY FORCE.

The Courts Ruling This petition for review is meritorious. The preliminary matter to be addressed is whether the Court should entertain questions of fact in this petition. A close perusal of the three issues presented for review before the Court readily reveals a lone issuewho between petitioners Frondarina spouses and respondents Malazarte spouses have prior possession of the disputed lot. Undeniably, this is a question of fact which is proscribed by Rule 45 of the 1997 Rules of Civil Procedure. It is clear under Section 1, Rule 45 of the 1997 Rules of Civil Procedure that petitions for review on certiorari shall ONLY raise questions of law. Questions of fact are not permitted because generally, the findings of fact of the CA are final, conclusive, and cannot be reviewed on appeal. The reason behind the rule is that the Court is not a trier of facts and it is not its duty to review, evaluate, and weigh the probative value of the evidence adduced before the lower courts.

The bar on factual issues, however, admits of certain reasonable deviations like when the judgment is based on misappreciation of facts or when the findings of facts of the CA are conflicting or contrary to the trial courts own findings.[if !supportFootnotes][14][endif]

The records manifest that the conclusions of facts of the CA and the Olongapo City RTC are both contradictory or conflicting with those of the Olongapo City MTCC. For this reason alone and so as to dispense equitable justice to those deserving, a departure from the factual issue bar rule is timely and in order.

To reiterate, the core issue in this instant petition is who between petitioners Frondarinas and respondents Malazartes are entitled to the possession of Lot 5, Block 15-B of the Gordon Heights Subdivision in Olongapo City. After examining closely the transcripts of testimonies, the Court gives credence to

petitioners claim that they and their predecessors-in-interest had been in peaceful, physical possession of the said lot since 1971 for the following reasons: 1. Petitioner Esperanza Frondarina, housekeeper, resided at 81 Fendler Street, East Tapinac, Olongapo City;[if !supportFootnotes][15][endif] while Romeo Valencia, driver of Olongapo City Councilor Jesus Danugrao, resided at Block 14, Gordon Heights, Olongapo City. Petitioners visited the lot three (3) to four (4) times a week[if !supportFootnotes][16][endif] and had a caretaker in the person of Lorenza Andrada. Romeo Valencia claimed to have occupied the lot for 15 years from 1975 and had put up a riprap fence in 1980.[if !supportFootnotes][17][endif] Thus, it is apparent that none of the parties actually resided at the said lot. The Court believes that the Frondarinas went to the lot three (3) or four (4) times a week and exercised acts of ownership and possession over it by fencing the sides of the lot with barbwire, planting vegetables like camote, okra, and others, and by tending two (2) mango trees and one (1) coconut tree planted by Esperanzas sister, Cirila Gongora;[if !supportFootnotes][18][endif] and when they were not on the lot, their caretaker, Lorenza Andrada, a neighbor residing at an adjacent lot, oversaw the disputed lot. The actuations of petitioners Frondarinas are more in accordance with the usual course of human conduct and common experience. On the other hand, Mr. Romeo Valencias claim that he occupied the lot for 15 years deserves scant consideration for it was not possible for him to be on the said lot most of the time because his job as Councilor Jesus Danugraos driver took up most of his time. 2. Mr. Romeo Valencia testified that he checked with the Bureau of Lands and City Assessor if there was no owner of the lot before he occupied it in 1975; and he was told that the lot had not been declared in the name of any person.[if !supportFootnotes][19][endif] This is false, for as early as 1970, the lot was declared for taxation with the City Assessor in the name of Cirila Gongora through Tax Declaration No. 32821 (Exhibit E), which became effective in 1970; and Tax Declaration No. 16-0611 (Exhibit F), which became effective in 1974. In addition, the said lot was registered with the Bureau of Lands on June 17, 1971 by Cirila Gongora, predecessor-in-interest of petitioners, through a Miscellaneous Sales Application (Exhibit D). Considering that Mr. Valencia made a false statement on an essential point material to the determination of the issue of possession, his testimony on all other matters is not worthy of belief and necessarily bereft of truth. It is a settled axiom that if witnesses testify falsely as to any material fact of their own testimony, their testimony should be discarded as a whole and cannot be relied on for whatever purpose.[if !supportFootnotes][20][endif] Falsus in uno, falsus in omnibus (false in one thing, false in everything).[if !supportFootnotes][21][endif] Also long established is the fundamental precept that witnesses willfully falsifying the truth in one particular testimony, when upon oath, ought never to be believed upon the strength of their own testimony, whatever they may assert.[if !supportFootnotes][22][endif] While there is a presumption that witnesses will generally declare the truth, this belief ceases as soon as it manifestly appears that they are capable of perjury.[if !supportFootnotes][23][endif] Considering that Mr. Valencia lied by stating that the lot was not registered in the name of another person with the Bureau of Lands and the Olongapo City Assessor before he allegedly started possessing the same lot in 1975, then the Court rules that his testimony on the fact of possession of the lot does not constitute evidence of the truth of said allegations and consequently disregards the same testimony, because it is bereft of weight and credit.

3. Petitioner Esperanza Frondarinas testimony revealed acts that are consistent with one who has been deprived of possession by force, strategy, and stealth by respondents as follows:

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a. Petitioner immediately confronted respondents why they unlawfully

entered their land on March 18, 1988, and asked them why respondents were building a riprap and digging holes in the ground and why they deposited hollow blocks in the premises. Respondents simply replied that they acquired their rights over the said lot from a certain Valencia;

b. After respondents unlawfully entered petitioners land on March 18, 1988, petitioners verbally reported the incident to the Office of the City Engineer and when the latter ordered one of its employees to go to the premises to investigate, said employee told respondents to stop any construction as they were not granted a building permit. Notwithstanding the warning from the City Engineers Office, respondents continued with their construction without any building permit;

c. On April 5, 1988, through a letter request, petitioners informed the Office of the City Engineer of the defiance of respondents and said office told petitioners that respondents were backed up by influential people;[if !supportFootnotes][24][endif]

d. On April 29, 1988, petitioner sent a letter to then Mayor Richard Gordon about their problem with the respondents (Exhibit R); and on the same date, petitioners complained to the City Legal Officer, Atty. Ma. Ellen Aguilar (Exhibit Q); and

e. When nothing happened to their written complaints, petitioners filed the Complaint for ejectment with the Olongapo City MTCC.

The aforementioned acts of petitioners were all in accordance with the behavior of a person who had been illegally and unfairly deprived of possession, and these clearly demonstrated that they had actually been in possession of said lot prior to respondents forcible entry.

The appellate court completely disregarded petitioners claim of possession simply because their caretaker, Ms. Lorenza Andrada, was not able to testify to corroborate petitioners claim of possession. The court a quo gave short shrift of the justification for non-appearance of Ms. Andradathat she was threatened by Mr. Valencia, the predecessor-in-interest of the Malazartes.

However, the Court finds that the threats on caretaker Lorenza Andrada to prevent her from testifying were substantiated by petitioner Esperanza Frondarina and policeman Eduardo Labrador; and the Court is convinced that Ms. Andrada was intimidated by respondents to prevent her from testifying, the latter knowing the importance of such parol evidence. Thus, the presumption that evidence willfully suppressed would be adverse if produced would not apply to the case at bar because it was not petitioners who restrained Ms. Andrada from testifying but respondents themselves; hence, petitioners had every reason to have the caretakers testimony adduced as evidence.

Moreover, despite the inability of Ms. Andrada to testify, there was ample documentary and parol evidence to support petitioners claim of possession. Petitioners Frondarinas physical possession of the disputed lot was strongly corroborated by PO3 Labrador, who stated under oath that he saw petitioner Esperanza in possession of the lot. This jibes with petitioner Esperanza Frondarinas story that she used to go to the lot

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at least three (3) times a week; and that on days petitioner Esperanza Frondarina was not in actual possession of the lot, Ms. Andrada oversaw it and exercised acts of possession in representation of petitioners. More importantly, the undisputed pieces of documentary proof like the tax declarations, tax receipts, and miscellaneous sales applications, which antedate those of respondents, unquestionably demonstrate the truth and factual basis of petitioners claim of possession. Mr. Valencias testimony on his alleged occupation of the said lot must give way to the clearly established facts that petitioners and their predecessors-in-interest had been in possession of the lot much earlier than respondents and Mr. Valencia. Under the admitted facts rule, evidence of whatever description must yield to the extent that it conflicts with admitted or clearly established facts.[if !supportFootnotes][25][endif] The Court gives superior credit to petitioners witnesses whose testimonies on material points are in accord with facts already established, rather than to respondents and witness Romeo Valencia whose testimonies were shown to be false or bereft of weight and credence.[if !supportFootnotes][26][endif] On the allegation that the inability of caretaker Andrada to testify prejudiced the claim of petitioners that respondents Malazartes committed acts of forcible entry in the subject lot, we find that undisputed documentary evidencethe letters to City Engineer De Leon (Exhibit P), to City Legal Officer Aguilar (Exhibit Q), and to then Mayor Gordon (Exhibit R), and the complaint for ejectment; as well as the convincing testimonies of petitioner Esperanza Frondarina and PO3 Labrador and the admission against interest made by respondent Laura Malazarte that she and Napoleon Malazarte entered the land only on March 18, 1998 and constructed their house on the lot despite the absence of a mayors permitcan only lead to the inference that they entered the land by strategy and stealth. We find strong circumstantial evidence from established facts to warrant the conclusion that, indeed, respondents committed forcible entry on the disputed lot. Circumstantial or presumptive evidence is defined as the existence of the principal facts x x x only inferred from one or more circumstances which have been established directly. It is further explained as an inference of a fact from other facts proved, and the fact thus inferred and assented to by the mind is said to be presumed, that is to say, it is taken for granted until the contrary is proved.[if !supportFootnotes][27][endif] In effect, the absence of Andradas testimony did not do any damage to petitioners cause of actionas ample circumstantial evidence is extant on record sufficient to convince the Court that respondents committed acts of forcible entry.

4. The chain of transfers from the original owner of the lotMr. Iluminado Amarto petitioner Frondarinas readily reveals possession of the said lot since July 22, 1970:

a. On July 22, 1970, Iluminado Amar executed a Deed of Transfer of Possessory Right (Exhibit C) in favor of Flordelina Santos;

b. On June 17, 1971, Flordelina Santos executed a Deed of Transfer of Possessory Right Over a Lot (Exhibit B) in favor of Cirila Gongora; and

c. On February 19, 1985, Cirila Gongora executed a Waiver and/or Renunciation of Rights to a Parcel of Land (Exhibit A) in favor of petitioner Esperanza Frondarina.

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On the other hand, the Deed of Renunciation and Quitclaim (Exhibit 5), executed by Romeo Valencia on March 1, 1988 in favor of the spouses Malazartes, pales in comparison with the three (3) successive transferswhich started on July 22, 1970that eventually resulted in the transfer of said rights in favor of petitioner Esperanza Frondarina. The first in time is the first in right. Thus, the much earlier conveyance by Iluminado Amar on July 22, 1970, without doubt, prevails over the Deed of Renunciation and Quitclaim executed on March 1, 1988 in favor of the Malazartes.

5. The tax declarations and tax receipts of petitioners and their predecessors-in-interest are dated much earlier than those of Romeo Valencia and respondents Malazartes.

The following tax declarations over the said lot support petitioners position, thus: a. Tax Declaration No. 32821 (Exhibit E) in the name of Cirila Gongora, predecessor-

in-interest of petitioners. This declaration became effective in 1970; b. Tax Declaration No. 16-0611 (Exhibit F) also in the name of Cirila Gongora which

became effective in 1974; c. Tax Declaration No. 16-0431 (Exhibit G) in the name of Cirila Gongora which

became effective in 1980; and d. Tax Declaration No. 004-3574 (Exhibit J) in the name of petitioner Esperanza

Frondarina which became effective in 1986.

On the other hand, respondents Malazartes could only present Tax Declaration No. 004-5057 (Exhibit 3) in the name of Romeo Valencia, which became effective in 1985 and Tax Declaration No. 004-5228 (Exhibit 7) in the names of respondents Malazartes, which became effective in 1988.

Clearly, the tax declarations of petitioners and that of their predecessors-in-interest are earlier than and superior to those of respondents, and these buttress petitioners claim that they had been in actual and peaceful possession of the said lot prior to respondents intrusion in 1988. Simply put, tax declarations are clear manifestations and strong indications of possession and occupation of a parcel of land.

In the same vein, the old tax receipts of petitioners are evidential and suggestive demonstration of their possession of the subject lot in the concept of an ownerconsider Tax Receipt No. 7841503 (Exhibit H) in the name of Cirila Gongora (predecessor-in-interest of petitioners) which reflects the tax payments from 1980-1985; and Tax Receipts Nos. 014949 (Exhibit K), 014899 (Exhibit K-1), 022657 (Exhibit K-2), and 022620 (Exhibit K-3), all in the name of Esperanza Frondarina, showing real estate tax payments for the years 1986 to 1988. Juxtaposed with petitioners receipts are Tax Receipts Nos. 013487 (Exhibit 4) and 013435 (Exhibit 4-A) in the name of Romeo Valencia issued for the year 1987, and Tax Receipt No. 024196 (Exhibit 8) for real estate taxes paid for 1988. Undeniably, the tax payments over the disputed lot by the Frondarinas are much earlier than those made by the Malazartes. These pieces of denotative evidence tend to show that petitioners had been in possession of the said lot not later than 1980.

Verily, it has been settled jurisprudence that although tax declarations or real estate payments of property are not conclusive evidence of ownership, nevertheless,

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they are good indicia of possession in the concept of an owner.[if !supportFootnotes][28][endif] Based on the tax declarations and tax receipts of both parties, we rule that petitioners have sufficiently adduced convincing evidence of possession over the disputed lot.

6. The Miscellaneous Sales Application (Exhibit D) filed by predecessor-in-interest Cirila Gongora on June 17, 1971 is much ahead in time than the Miscellaneous Sales Application filed by Romeo Valencia (predecessor-in-interest of Malazartes) on October 14, 1977. Thus, the earlier filing of sales application by the predecessor-in-interest of petitionersCirila Gongoraindicates petitioners occupation and possession of the disputed lot ahead of Romeo Valencias alleged occupation and possession of it.

In the light of the foregoing reasons, the Court rules that petitioners have established their right to physical possession over the subject lot.

Considering that respondents were informed by petitioners that the disputed lot was owned by them and had the right of possession over said lot, but still, respondents persisted in building their house on it, respondents are therefore declared builders in bad faith and shall lose their house without any right to reimbursement. WHEREFORE, the petition is GRANTED. The March 13, 2001 Decision of the Court of Appeals in CA-G.R. SP No. 61335 and the September 13, 2000 Decision of the Olongapo City Regional Trial Court in Civil Case No. 192-0-2000 are REVERSED and SET ASIDE; and the February 28, 2000 Decision of the Olongapo City MTCC in Civil Case No. 2853 is hereby REINSTATED.

No costs. SO ORDERED.

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Yu vs. Pacleb, G.R. 130316, 1/24/07* G.R. No. 130316 January 24, 2007 ERNESTO V. YU and ELSIE O. YU, Petitioners, vs. BALTAZAR PACLEB,1 Respondent. D E C I S I O N CORONA, J.: The present petition filed under Rule 45 of the Rules of Court originated from an action for forcible entry and damages filed by petitioners Ernesto and Elsie Yu against respondent Baltazar Pacleb. The antecedent facts follow. Sometime in September 1992, Ruperto Javier allegedly offered to sell Lot No. 6853-D to petitioners for P75 per sq.m.lawphil.net The lot was approximately 18,000 square meters and was located in Barangay Langkaan, Dasmarias, Cavite. Javier supposedly purchased the lot from one Rebecca del Rosario who, in turn, acquired it from respondent and his wife. The title of the property (Transfer Certificate of Title [TCT] No. T-118375), however, remained in the names of respondent and his wife. The instruments in support of the series of alleged sales were not registered. On September 11, 1992, petitioners accepted the offer and gave Javier P200,000 as downpayment for the lot. Javier then delivered his supposed muniments of title to petitioners. After the execution of a contract to sell, he formally turned over the property to petiti oners. At the time of the turn-over, a portion of the lot was occupied by Ramon C. Pacleb, respondents son, and his wife as tenants. On September 12, 1992, Ramon and his wife allegedly surrendered possession of their portion to petitioners. Later on, petitioners appointed Ramon as their trustee over the subject lot. Aside from taking possession of the property, petitioners also caused the annotation on TCT No. T-118375 of a decision rendered in their favor in Civil Case No. 741-93.2 This decision attained finality on April 19, 1995. Petitioners alleged that they exercised ownership rights as well as enjoyed open, public and peaceful possession over the property from September 12, 1992 until the early part of September 1995. During this time, respondent was in the United States. Upon respondents return to the Philippines in May 1995, he allegedly entered the property by means of force, threat, intimidation, strategy and stealth thereby ousting petitioners and their trustee, Ramon. Despite repeated demands, respondent, asserting his rights as registered owner of the property, refused to vacate the premises and surrender its possession to petitioners. Petitioners filed an action for forcible entry3 in the Municipal Trial Court (MTC) of Dasmarias, Cavite on November 23, 1995. Respondent filed an answer with compulsory counterclaim dated December 8, 1995. After the issues were joined, the MTC required the submission of the parties position papers at a preliminary conference on March 11, 1996. Respondent failed to comply. On June 17, 1996, the MTC ruled: WHEREFORE, in view of the foregoing, the [respondent] and other persons claiming right under him are hereby ordered to surrender physical possession of Lot No. 6853-D in favor of the [petitioners] and to pay the sum of TWENTY-FIVE THOUSAND (P25,000.00) PESOS as attorneys fees. SO ORDERED.4 On appeal,5 the Regional Trial Court (RTC) of Imus, Cavite rendered a decision affirming the MTC decision in toto.6 Respondent elevated his case to the Court of Appeals (CA)7 which rendered the

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assailed decision on March 18, 1997: WHEREFORE, the Petition is GRANTED; the Decision dated October 25, 1996 of the [RTC] of Imus, Cavite in Civil Case No. 052-96 and the Decision of the [MTC] of Dasmarias, Cavite in Civil Case No. 182 are SET ASIDE; and Civil Case No. 182 for Forcible Entry and Damages is hereby ordered DISMISSED. No pronouncement as to costs. SO ORDERED.8 In a resolution dated August 20, 1997, the CA denied petitioners motion for reconsideration for lack of merit. Before us now come petitioners who claim that the appellate court erred in finding that respondent had prior physical possession of the subject property.lawphil.net "In an action for forcible entry, the plaintiff must prove that he was in prior possession of the land or building and that he was deprived thereof by means of force, intimidation, threat, strategy or stealth."9 The plaintiff, however, cannot prevail where it appears that, as between himself and the defendant, the latter had possession antedating his own.10 We are generally precluded in a Rule 45 petition from reviewing factual evidence tracing the events prior to the first act of spoliation.11 However, the conflicting factual findings of the MTC and RTC on one hand, and the CA on the other, require us to make an exception. We overrule petitioners contentions. The Civil Code states that possession is the holding of a thing or the enjoyment of a right.12 In the grammatical sense, to possess means to have, to actually and physically occupy a thing, with or without right.13 "Possession always includes the idea of occupation x x x. It is not necessary that the person in possession should himself be the occupant. The occupancy can be held by another in his name."14 Without occupancy, there is no possession.15 Two things are paramount in possession.16 First, there must be occupancy, apprehension or taking. Second, there must be intent to possess (animus possidendi).17 Here, petitioners failed to establish that they had prior physical possession to justify a ruling in their favor in the complaint for forcible entry against respondent. In the decision in Civil Case No. 741-93 (a case for specific performance and damages against Javier, the alleged vendor of the lot in question) upon which petitioners based their right to possess in the first place, the trial court categorically stated: The [petitioners were never placed] in possession of the subject property on which [was] planned to be [site of] a piggery, nor [were they] given a clearance or certification from the Municipal Agrarian Reform Officer.18 (emphasis ours) The claim that the lot was turned over to petitioners in 1992 was self-serving in the face of this factual finding. On the other hand, the tax declarations and receipts in the name of respondent in 1994 and 1995 established the possession of respondent.19 The payment of real estate tax is one of the most persuasive and positive indications showing the will of a person to possess in concepto de dueo or with claim of ownership.20 "[P]ossession in the eyes of the law does not mean that a man has to have his feet on every square meter of the ground before he is deemed in possession."21 In this case, Ramon, as respondents son, was named caretaker when respondent left for the United States in 1983.22 Due to the eventual loss of trust and confidence in Ramon, however, respondent transferred the administration of the land to his other son, Oscar, in January 1995 until his return in May 1995.23 In other words, the subject land was in the possession of the respondents sons during the contested period. Petitioners cite an alleged document (Kusangloob na Pagsasauli ng Lupang Sakahan at Pagpapahayag ng Pagtalikod sa Karapatan) dated March 10, 1995 executed by them

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and Ramon to prove a turn over of possession. They also seek to prove their exercise of rights over the land through alleged frequent visits and the designation of Ramon as their own trustee as declared in a joint affidavit attached to their position paper filed with the MTC. These instruments, however, fail to convince us of petitioners actual occupancy of the subject land. First, petitioners themselves acknowledged that Ramon and his wife occupied part of the land as tenants of respondent. Second, Ramon, a mere tenant, had no authority to sign such document dated March 10, 1995 waiving all rights to the land. Third, there was no clear proof in the records of the appointment of Ramon as petitioners trustee save their self-serving statements to this effect. Finally, at the time the Kusangloob na Pagsasauli document was executed, the caretaker of the land was no longer Ramon but Oscar.24 Most important, the title of the land in question (TCT No. T-118375) remained in the name of respondent.25 "As the registered owner, petitioner had a right to the possession of the property, which is one of the attributes of ownership."26 The Civil Code states: Art. 538. Possession as a fact cannot be recognized at the same time in two different personalities except in the cases of co-possession. Should a question arise regarding the fact of possession, the present possessor shall be preferred; if there are two possessors, the one longer in possession; if the dates of the possession are the same, the one who presents a title; and if all these conditions are equal, the thing shall be placed in judicial deposit pending determination of its possession or ownership through proper proceedings. In view of the evidence establishing respondents continuing possession of the subject property, petitioners allegation that respondent deprived them of actual possession by means of force, intimidation and threat was clearly untenable. In Gaza v. Lim, we held that: Where a dispute over possession arises between two persons, the person first having actual possession is the one who is entitled to maintain the action granted by law; otherwise, a mere usurper without any right whatever, might enter upon the property of another and, by allowing himself to be ordered off, could acquire the right to maintain the action of forcible entry and detainer, however momentary his intrusion might have been.27 WHEREFORE, the petition is hereby DENIED. The decision of the Court of Appeals dated March 18, 1997 in CA-G.R. SP No. 42604 is AFFIRMED. Costs against petitioners. SO ORDERED.

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Copuyoc vs. de Sola, G.R. 151322, 10/11/06* MARIO L. COPUYOC, G.R. No. 151322 Petitioner, Present: PANGANIBAN, C.J. (Chairperson) YNARES-SANTIAGO, - versus - AUSTRIA-MARTINEZ, CALLEJO, SR., and CHICO-NAZARIO, JJ. ERLINDA DE SOLA, Promulgated: Respondent. October 11, 2006 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x D E C I S I O N AUSTRIA-MARTINEZ, J.:

The parties in this case are vying for the rightful possession of a property located in Xavierville, Loyola Heights, Quezon City.

Mario L. Copuyoc* (petitioner) and his spouse are holders of a Contract to Sell

dated September 6, 1995, between them as buyers and the Bank of Commerce (formerly The Overseas Bank of Manila) as seller, while Erlinda de Sola (respondent) has Transfer Certificate of Title (TCT) No. 87569 in her name.

On December 18, 1996, respondent filed with the Metropolitan Trial Court

(MeTC) of Quezon City, Branch 35, a complaint for Forcible Entry with Injunction and Urgent Prayer for Temporary Restraining Order. The complaint contained the allegations that: respondent is the owner of a parcel of land known as Lot 25, Block 6 of the Xavierville Estate Subdivision located at No. 6 Guerrero St., Xavierville I, Loyola Heights, Quezon City, by virtue of TCT No. 87569; respondent has been in actual possession of the property since June 7, 1993, when the same was sold to her by Christine C. Quesada, as evidenced by an Absolute Deed of Sale of Real Estate; petitioner commenced construction of a house on the property without respondents consent and despite demands, petitioner refused to stop the construction and vacate the premises.[if !supportFootnotes][1][endif] The property was described in respondents TCT No. 87569, as follows: A parcel of land (Lot 25, Blk. 6, of the cons. subd. plan (LRC) Pcs-

6818, being a portion of Lots 1-8, Blk. 1; Lots 1-23, Blk. 2, Lots 1-14, Blk. 3; Lots 1-16, Blk. 5; Lots 1-22, Blk. 6, Lots 1-20, 22, Blk. 7; Lots 1-3, Blk. 8; Lots 1-18, Blk. 9, Lots 1-13, Blk. 10, Lots 1-16, Blk. 11; Lots 1-13, Blk. 12, Lots 58-81, Blk. 13; Lots 6, 8, 38, 40, 42, 44, 46, 58, Blk. 14; Lots 1-20, Blk. 15; Lots 1, 2, 5, 11, [Blk. 16,] Blk. 16; Lots 16-24, 26, Blk. 23, Lots 3-6-12, Blk. 24; Lots 1-9, 11-13, Blk. 25; Lots 2-4, 6, Blk. 26, Lots 2, 4, 6, 9-11, 13, 15, 17, 18, 21-22, Blk. 27; Lots 4-5, Blk. 28; Lots 1-4, 10, 12, Blk. 31; Park Lots 1, 2, 3, 5, 6-A, 6-B,

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4, 11, Street Lots 4-8 and 10, 21, 23, 24-A, all of Psd-35337; Lots 12 & 21; St. Lots 1, 2, 3 and Park Lot 1, all of Psd-53686, Lots 23-A & 23-B, Blk. 23; Lots 11-A, 11-B, Blk. 31, St. Lots 22-A, 22-B, 23-A, 23-B, all of Psd-35337, Amd. LRC Rec. No. 7672), situated in the Dist. of Tandang Sora, Quezon City, Is. of Luzon. Bounded on the West, pts. 1-2 by Lot 23, Blk. 6; on the North, pts. 2-4 by Road Lot 8; on the East, pts. 4-5 by Lot 27, Blk. 6; and on the South, pts. 5-1 by Lot 26, Blk 6, all of the cons.-sub. plan. x x x; containing an area of FOUR HUNDRED SEVENTY SQ. METERS AND FIFTY (470.50) SQ. DECIMETERS, more or less. x x x [if !supportFootnotes][2][endif] (Emphasis supplied)

On January 15, 1997, the MeTC conducted a hearing on respondents

application for the issuance of a temporary restraining order, and finding merit on the application, issued a temporary restraining order on the same day.

Petitioner filed his Answer with Counterclaim and Opposition to the Petition for

the Issuance of a Writ of Preliminary Injunction, denying respondents allegations and asserting that: he is the lawful possessor of the property, by virtue of a Contract to Sell executed on September 6, 1995 in his favor by the Bank of Commerce; respondents title is forged and the property described therein is located in Tandang Sora, not Xavierville; the Bank of Commerce is a holder of duly reconstituted title [TCT No. RT-114371 (265907)]** covering the subject property, including other properties in Phase I of the Xavierville Subdivision, and had possessed the same for 43 years; a syndicate was able to procure forged titles after the office of the Register of Deeds was burned during the fire that gutted the Quezon City Hall.[if !supportFootnotes][3][endif] The property was described in the Contract to Sell, as follows:

A parcel of land (Lot 25, Block 6, of the consolidation-subdivision plan

(LRC) Pcs-6818 (Sheet 2), being a portion of the consolidation of Lots 1-18, Block 1; 1-13, Block 2; 1-14, Block 3; 1-16, Block 5; 1-22, Block 6; 1-23, Block 7; 1-9, Block 8; 1-21, Block 9; 1-3, Block 10, 1-16, Block 11; 1-13, Block 12; Park Lots 1, 2, and 3 and Street Lots 4-8 and 10-16, all described on plan Psd-35337, LRC (GLRC) Record No. 7672), situated in Quezon City, Island of Luzon. Bounded on the N., points 2 to 4, by Road Lot 5; on the E., points 4 to 5, by Lot 27; on the S., points 5 to 1 by Lot 26; and on the W., points 1 to 2 by Lot 23, all of Block 6, all of the consolidation subdivision plan. x x x; containing an area of FOUR HUNDRED SEVENTY AND FIFTY SQUARE METERS (470.5) SQUARE METERS more or less.[if !supportFootnotes][4][endif]

Thereafter, the MeTC held a hearing on the propriety of the issuance of a

temporary restraining order after the 20-day period. When the parties respective counsels agreed to maintain the status quo, the MeTC ordered the submission of their Positions Papers and other supporting evidence or documents, after which the case shall be deemed submitted for decision.

On September 22, 1997, the MeTC rendered its Decision dismissing the

complaint. The dispositive portion of the Decision provides:

WHEREFORE, in view of the foregoing, plaintiffs action for Forcible Entry against defendant Mario Capuyoc is hereby ordered DISMISSED. No pronouncement as to cost.

Defendants counterclaim is also DISMISSED. Since plaintiff De Sola is only trying to protect her interest.

SO ORDERED.[if !supportFootnotes][5][endif]

Respondent appealed to the Regional Trial Court (RTC) of Quezon City,

Branch 225, which, in its Decision dated October 19, 1998, reversed the dismissal of the complaint, and ordered petitioner to vacate the premises. The dispositive portion of the Decision reads:

WHEREFORE, premises considered, the lower courts decision

DISMISSING plaintiff-appellants forcible entry suit is REVERSED. Accordingly, this Court hereby orders that defendant-appellee Mario Capuyoc and all persons claiming rights under him to vacate the premises known as Lot 25, Block 6 of the Xavierville Estate Subdivision located at No. 6 Guerrero St., Xavierville I, Loyola Heights, Quezon City. No cost.

SO ORDERED.[if !supportFootnotes][6][endif]

This time, petitioner filed a Petition for Review with the Court of Appeals (CA), docketed as CA-G.R. SP No. 52132. The CA,[if !supportFootnotes][7][endif] in its Decision dated April 30, 2001, denied the petition, without prejudice to the outcome of Civil Case No. Q-97-30333 entitled Bank of Commerce v. Erlinda de Sola and to the filing of an appropriate plenary action to settle the issue of ownership of the disputed property.[if !supportFootnotes][8][endif] Hence, the present petition for review based on the following grounds: The Court of Appeals decided questions of substance in a way not in

accord with law or with applicable decisions of the Honorable Court, particularly:

(i) In holding that Respondent had priority of possession over the property subject of this case;

(ii) In taking cognizance of the tax declarations which were presented for the first time on appeal and ruling that these tax declarations prove Respondents prior possession of the property subject of this case.

(iii) In not finding as conclusive, the report of the chief of the surveys division of the department of environment and natural resources that the properties as described in the parties respective titles are not located in one and the same place.[if !supportFootnotes][9][endif]

The MeTC found that the property over which the Bank of Commerce holds title to is not the property mentioned in respondents title; hence, there was no forcible entry to speak of.[if !supportFootnotes][10][endif] The RTC, however, disagreed with the finding of the MeTC, ruling that petitioners evidence proved that the property in litigation is one and the same, and that respondent was in prior possession of the property. According to the RTC, the testimonies of petitioners witnesses were conflicting. On one hand, the testimony of Geodetic Engineer Ernesto Erive showed that petitioners property is located in Xavierville, while respondents is in Tandang Sora. On the other hand, the Chief of the Reconstitution Division of the Land Registration Authority, Benjamin Bustos, testified that the lot described in the title of the Bank of Commerce is identical with the lot described in respondents title. This was allegedly corroborated in the Order of Reconstitution issued by Bustos, stating that [T]he lot described in TCT No. 265907 is identical to the lot described in TCT No. 265984 issued in the name of spouses Miguel Uy and Carmela Lim and was ordered reconstituted under administrative Order No. Q-366 on September 23, 1992.[if !supportFootnotes][11][endif] The RTC also ruled that the filing of the action for Quieting of Title by the Bank of Commerce on February 1, 1997, docketed as Civil Case No. Q-97-30333, amounts to an implied admission that the two titles cover the same property. Given these, the RTC concluded that petitioners and respondents titles refer to the same property.[if !supportFootnotes][12][endif]

The RTC also ruled that respondent was in prior possession of the property

inasmuch as the Deed of Sale between respondent and Quesada, which was executed on June 7, 1993, amounts to possession in legal contemplation.[if !supportFootnotes][13][endif]

The CA upheld the RTCs findings and conclusion. The CA ruled that

respondent has a better right to the property since the sale between her and Quesada was on June 7, 1993, while the Contract to Sell between petitioner and the Bank of Commerce was dated September 6, 1995. While the testimony of Engineer Erive may have cast a doubt or cloud on respondents title, still, until there is a judicial declaration as regards its nullity, then respondents title remains valid.[if !supportFootnotes][14][endif]

The CA also found that respondent had prior possession of the property, which

began in 1993, and petitioner encroached on such possession. While respondent did not stay on the property, her regular visits are the same as being in possession thereof. The CA acknowledged that the tax declarations in the name of respondent are indications that strengthened her claim of possession.[if !supportFootnotes][15][endif] With regard to the testimony of Engineer Erive on the identity of the property, the CA held that this can be properly threshed out in Civil Case No. Q-97-30333 presently pending with the RTC of Quezon City.[if !supportFootnotes][16][endif]

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Petitioner takes exception to the foregoing findings of the RTC and the

CA. Petitioner argues that despite the execution of the Deed of Sale, respondent was never in actual and physical possession of the property prior to the filing of the forcible entry case, unlike petitioner who was able to build improvements thereon. Petitioner also argues that his predecessor-in-interest, the Bank of Commerce, has also been in prior possession of the property, as shown by the fence it built around the area even before it was sold to petitioner. The Bank of Commerces lack of title over the property can be explained by the fact that it was pending reconstitution and the title was in fact already reconstituted during the pendency of the case.

Petitioner also objects to the admission by the RTC of respondents tax

declarations since it was presented only for the first time during the appellate proceedings. Even then, petitioner maintains that the tax declarations do not establish respondents actual physical possession.

Finally, petitioner asserts that the evidence presented clearly indicates that

property described in respondents title is not the same property bought by petitioner.[if !supportFootnotes][17][endif]

At the outset, it should be stated that as a general rule, the Court will not

entertain petitions for review under Rule 45 of the Rules of Court, which raise questions of fact, as its power of judicial review is confined only to errors of law. Considering, however, that the CA and the RTC came up with contradictory findings with that of the MeTC, the Court is now constrained to analyze and weigh all over again the evidence presented in the proceedings below, as it is clearly an exception to the general rule.[if !supportFootnotes][18][endif]

An action for forcible entry is a quieting process that is summary in nature. It is

designed to recover physical possession through speedy proceedings that are restrictive in nature, scope and time limits. In forcible entry, the plaintiff is deprived of physical possession by means of force, intimidation, threat, strategy or stealth. The presence of any of these elements in the present case implies that the possession of the disputed land by the defendant has been unlawful from the beginning; that is, he acquired possession by illegal means.[if !supportFootnotes][19][endif]

The principal issue to be resolved in forcible entry cases is mere physical or

material possession (possession de facto) and not juridical possession (possession de jure) nor ownership of the property involved.[if !supportFootnotes][20][endif] Title is not involved. Thus, in David v. Cordova,[if !supportFootnotes][21][endif] the Court explained:

The only question that the courts must resolve in ejectment proceedings is - who is entitled to the physical possession of the premises, that is, to the possession de facto and not to the possession de jure. It does not even matter if a partys title to the property is questionable, or when both parties intruded into public land and their applications to own the land have yet to be approved by the proper government agency. Regardless of the actual condition of the title to the property, the party in peaceable quiet possession shall not be thrown out by a strong hand, violence or terror. Neither is the unlawful withholding of property allowed. Courts will always uphold respect for prior possession.

Thus, a party who can prove prior possession can recover such possession even against the owner himself. Whatever may be the character of his possession, if he has in his favor prior possession in time, he has the security that entitles him to remain on the property until a person with a better right lawfully ejects him. To repeat, the only issue that the court has to settle in an ejectment suit is the right to physical possession.[if !supportFootnotes][22][endif] (Emphasis supplied)

It is also well settled that in civil cases, the burden of proof is on the plaintiff to

establish his case by a preponderance of evidence. If the plaintiff claims a right granted or created by law, the same must be proven by competent evidence. The plaintiff must rely on the strength of his own evidence and not on the weakness of that of his opponent.[if !supportFootnotes][23][endif] In the present case, it devolved upon respondent to show by preponderance of evidence that she was illegally deprived of possession of the property subject of the forcible entry case for her to obtain judgment in her favor.[if !supportFootnotes][24][endif]

Coming now to the issue of who, as between petitioner and respondent, has

priority in possession of the property, the Court notes, at this juncture, a basic error in the decisions of the MeTC, RTC, and the CA, which should be rectified. All three courts entertained the impression that petitioners possession is based on his claim of ownership of the property. This is not so. It should be pointed out that petitioners right to possess the property is not derived from any claim of ostensible ownership over the same but on the provision in the Contract to Sell allowing him to take possession of the property pending reconstitution of the title and full payment of the purchase price. Ownership remained in the name of the Bank of Commerce, and petitioner is yet to become the owner of the property at the time the ejectment proceedings were had. This is simply because in a contract to sell, ownership is, by agreement, reserved in the vendor and is not to pass to the vendee until full payment of the purchase price.[if !supportFootnotes][25][endif] In fact, The Bank of Commerce can even avail of the remedy of ejectment against petitioner in case the latter defaults payment since the former retains ownership of the property.[if !supportFootnotes][26][endif] While this particular issue was neither raised nor brought up, the Court, nevertheless, deems it necessary to bring it up, in the interest of substantial justice and to avoid further litigation on the matter.[if !supportFootnotes][27][endif]

It has been ruled that a plaintiff in an ejectment case cannot succeed where it

appears that, as between himself and the defendant, the latter had a possession antedating his own. To ascertain this, it is proper to look at the situation as it existed before the first act of spoliation occurred.[if !supportFootnotes][28][endif]

As borne by the records, petitioner claims actual and physical possession of

the property, while respondent claims possession through an ostensible ownership over the property. With regard to petitioner, his claim of right to possession is derived from the Contract to Sell between him and his wife as buyers, and the Bank of Commerce as seller. Based on said contract, petitioner was allowed to take possession of the

property. In turn, the Bank of Commerce (then the Overseas Bank of Manila) bought the property from the Xavierville Estate, Inc. in a Deed of Sale of Real Estate dated September 8, 1967, and from which TCT No. 265907 issued on December 5, 1979 was based.

On the other hand, respondents claim of possession over the property is

based on an Absolute Deed of Sale of Real Estate dated June 7, 1993 between respondent and Christine Quesada, and by virtue of which, TCT No. 87569 was issued in her name on June 8, 1993. TCT No. 87569 was traced back to Ana Maria Pilarta Figueras, who was the previous holder of TCT No. 76045 issued on January 6, 1993, and from whom Quesada bought the property. Meanwhile, TCT No. 80618 in the name of Quesada was issued on February 18, 1993.

Given the surrounding circumstances of this case, the Court finds that

petitioner is in prior possession of the property, and is entitled to remain therein. First, while it may be true that the Absolute Deed of Sale of Real Estate

between respondent and Christine Quesada was executed on June 7, 1993, prior to the Contract to Sell between petitioner and the Bank of Commerce on September 6, 1995, it should be emphasized that the execution of a deed of sale is merely a prima facie presumption of delivery of possession of a piece of real property, which is destroyed when the delivery is not effected because of a legal impediment. Said constructive or symbolic delivery, being merely presumptive, may be negated by the failure of the vendee to take actual possession of the land sold,[if !supportFootnotes][29][endif] as in respondents case. Records show that respondent never occupied the property from the time it was allegedly sold to her on June 7, 1993 or at any time thereafter.

Respondent, however, maintains that her regular visits to the property

constitute possession. In Dela Rosa v. Carlos,[if !supportFootnotes][30][endif] the Court held that visiting the property on weekends and holidays is evidence of actual or physical possession. In respondents case, however, her regular visits to the property are not unequivocal proof of her actual or physical possession. In a span of three years, i.e., from the time she bought the property up to the time that the complaint in this case was filed, respondent visited the property only five times.[if !supportFootnotes][31][endif] Neither did she construct any improvements or fencing on the property.[if !supportFootnotes][32][endif] In fact, she does not even know the road number on which the property is situated given that she visited the place only five times.[if !supportFootnotes][33][endif] Her infrequent visits do not constitute possession, specially considering that these were not coupled with any actual exercise of dominion over the property.

In contrast, petitioner was able to establish his actual physical possession over

the property, having started construction thereon soon after the property was turned over to him by virtue of the Contract to Sell on September 6, 1995.

The fact that petitioner does not have a tax declaration over the property was

taken against him. This is erroneous. As pointed out earlier, petitioner is yet to become the owner of the property. Obviously, he cannot declare the property as his own for tax purposes since it is still owned by the Bank of Commerce. Moreover, the RTC should not have permitted respondents belated submission in evidence of the tax declarations. In the first place, possession is the only issue in a case for forcible entry. Also, there is no justification for the delay in presenting said evidence.[if

!supportFootnotes][34][endif] More importantly, there exists a serious doubt as to the identity of the property,

which respondent claims as owned and possessed by her. An area delimited by boundaries properly identifies a parcel of land.[if !supportFootnotes][35][endif] In this case, the respective titles of the Bank of Commerce and respondent bear the following boundaries:

Technical Description TCT No. 87569 in the name of Erlinda R. de Sola TCT No. RT-114371 (265907) in the name of the

Bank of Commerce Bounded on the North by

pts. 2-4 by Road Lot 8

points 2 to 4, by Road Lot 5

Bounded on the East by

pts. 4-5 by Lot 27, Blk. 6

points 4 to 5, by Lot 27

Bounded on the South by

pts. 5-1 by Lot 26, Blk. 6

points 5 to 1 by Lot 26

Bounded on the West by

pts. 1-2 by lot 23, Blk. 6

points 1 to 2 by Lot 23

situated in district of Tandang Sora, Quezon City, Island of Luzon

Quezon City, Island of Luzon

Road 8 bounds the property described in respondents title on the north, while Road 5 bounds petitioners property on the north. As testified to by Geodetic Engineer Ernesto Erive of the Bureau of Lands, who plotted the actual boundaries as described in the respective titles of respondent and the Bank of Commerce, Lot 25, Block 6, Road 8 is located 200 meters away.[if !supportFootnotes][36][endif] The sketch plan exhibits this. Engineer Erive also testified that after projecting the properties on these two titles, it appears that the Bank of Commerce property is located in Loyola Heights along the western side of Katipunan Street, while respondents property is located in Tandang Sora on the northwestern side of Commonwealth Avenue.[if !supportFootnotes][37][endif] The RTC gave greater weight to the testimony of Mr. Benjamin Bustos that the property described in these two titles is identical. The Court, however, is inclined to believe otherwise. It should be stressed that the title is the conclusive proof of a propertys metes and bounds.[if !supportFootnotes][38][endif] The marked discrepancy between the two titles clearly casts serious doubt as to the identity of the property being claimed by respondent. Given respondents failure to establish her claim, including the identity of the property, her case perforce must likewise fail. WHEREFORE, the petition is GRANTED. The Court of Appeals Decision dated April 30, 2001 is REVERSED and SET ASIDE together with the Regional Trial Courts Decision dated October 19, 1998. The Decision dated September 22, 1997 rendered by the Metropolitan Trial Court of Quezon City, Branch 35, is REINSTATED. This is without prejudice to the outcome of Civil Case No. Q-97-30333, entitled Bank of Commerce v. Erlinda de Sola.

Malayan Realty vs. Uy, G.R. 163763, 11/10/06* G.R. No. 163763 November 10, 2006 MALAYAN REALTY, INC. represented by ALBERTO C. DY., Petitioner, vs. UY HAN YONG, Respondent. D E C I S I O N CARPIO MORALES, J.: Malayan Realty, Inc. (Malayan), is the owner of an apartment unit known as 3013 Interior No. 90 (the property), located at Nagtahan Street, Sampaloc, Manila. In 1958, Malayan entered into a verbal lease contract with Uy Han Yong (Uy) over the property at a monthly rental of P262.00.1 The monthly rental was increased yearly2 starting 1989, and by 2001, the monthly rental was P4,671.65.3 On July 17, 2001, Malayan sent Uy a written notice4 informing him that the lease contract would no longer be renewed or extended upon its expiration on August 31, 2001, and asking him to vacate and turn over the possession of the property within five days from August 31, 2001, or on September 5, 2001.5 Despite Uys receipt of the notice on June 18, 2001, he refused to vacate the property, prompting Malayan to file before the Metropolitan Trial Court (MeTC) of Manila a complaint for ejectment, docketed as Civil Case No. 171256, and was raffled to Branch 3 thereof. In its complaint, Malayan prayed for the court to order Uy and all other persons claiming possession under him to vacate the property, to pay P9,000 as fair and reasonable monthly compensation for its use from September 1, 2001 until its possession is turned over to it, and to pay P20,000 as attorneys fees as well as costs of suit.6 The trial court, noting that there was no showing that the lease contract was on a monthly basis and that it was for a definite period, given that Uy has been occupying the leased property continuously for more than 40 years,7 held that Uy could not be ejected on the ground of termination of the contract.8 It accordingly dismissed9 Malayans complaint. Aggrieved, Malayan appealed to the Regional Trial Court (RTC) which, by Decision10 dated November 22, 2002, set aside the judgment of the MeTC. On the basis of Article 1687 of the New Civil Code,11 the RTC extended the lease contract for a period of five years, taking into consideration the fact that Uy was 75 years old and had lived in the leased property for more than half of his life.12 And the RTC, finding that Malayan acted arbitrarily and with vindictiveness in instituting the complaint, ordered Malayan to pay P100,000 as moral damages, P100,000 as exemplary damages, and P30,000 as attorneys fees.13 Malayan filed a motion for reconsideration,14 arguing that since Uy did not appeal the MeTC decision, the RTC erred in granting him affirmative relief by extending the period of lease and awarding him damages and attorneys fees. Acting on Malayans Motion for Reconsideration, the RTC deleted the award of damages to Uy but retained its ruling extending the lease period for five years.15 Still dissatisfied, Malayan elevated the case to the Court of Appeals (CA), before which it contended that the RTC had no legal or factual basis for extending the lease contract as the same was not pleaded by Uy in his counterclaim nor sought it as a relief. By Decision16 of February 19, 2004, the CA modified the RTC decision by shortening the extension of the lease contract to one year from the finality of the decision. And the CA increased the rental rate at 10% per annum starting September 6, 2002, viz: x x x [P]etitioner also prayed that respondent herein be ordered to pay a rental of P9,000.00 a month. The court had authority to fix the reasonable value for such use and occupancy from the expiration of the contract of lease because it is settled that the rental

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stipulated in the contract of lease that has expired or terminated may no longer be the reasonable value for the use and occupation of the premises as a result or by reason of change or rise in values (T & C Development Corp. vs. Court of Appeals, 317 SCRA 476). Taking into account that on September 18, 2001, the date when petitioner filed the complaint for ejectment, the applicable law are RA Nos. 7644 and 8437, which extended the period of rent control from 1993 to 1997 and then from 1998 to 2001, respectively. x x x x As the maximum increase allowed is 15%, we hold to grant an increase of 10% per annum, under the circumstances of this case. Hence, the increase should be as follows: Sept. 6, 2001- Sept. 6, 2002 P5,138.82 Sept. 7, 2002 Sept. 7, 2003 P5,652.70 Sept. 8, 2003 onwards P6,217.95 Thus, we hereby grant the same, but only to the amount herein-above stated considering that the original rate is P4,671.65. x x x (Underscoring in the original) Thus the dispositive portion of the CA decision read: WHEREFORE, premises considered, the Decision dated November 22, 2002 and the Order dated January 24, 2003 of the Regional Trial Court of Manila, National Capital Judicial Region, Branch 40, in Civil Case No. 02-103958, are hereby MODIFIED, by shortening the extension of lease to a period of only one (1) year from finality of this decision and fixing the rental to the rate as herein-above provided, from the date of expiration of lease (5 days after August 31, 2001) on September 6, 2001. In all other respects, the petition is denied. No pronouncement as to costs. The parties respective motions for reconsideration were denied by the CA by Resolution17 of May 28, 2004. Malayan (hereafter petitioner) thereupon filed the present petition for review on certiorari, arguing that the CA erred in granting a one year extension of the lease reckoned from the finality of the decision.18 Petitioner asserts that an extension of the period of a lease may be sought by the tenant before, and not after the termination of the lease; and that Uy (hereafter respondent) had sufficient time to request for extension, given that the notice of termination of the lease was served upon him more than 30 days before its effectivity, but that respondent did not so request even after the complaint was filed in court.19 Petitioner thus maintains that no "equitable reason" justifies respondents continued possession of the property for more than four years from the time the complaint for ejectment was filed.20 Respondent, on the other hand, faults the CA to have erred in ruling that the lease was considered to be on a month to month basis, and that even if Article 1687 of the New Civil Code is applicable, the CA erred in shortening the extension of the lease to one year instead of five years as adjudged by the RTC.21 And it faults the CA to have abused its discretion in increasing the rental at 10% per annum.22 Under Article 1687 of the New Civil Code which reads: Article 1687. If the period for the lease has not been fixed, it is understood to be from year to year, if the rent agreed upon is annual; from month to month, if it is monthly; from week to week, if the rent is weekly; and from day to day, if the rent is to be paid daily. However, even though a monthly rent is paid, and no period for the lease has been set, the courts may fix a longer term for the lease after the lessee has occupied the premises for over one year. x x x, if the period of a lease contract has not been specified by the parties, it is understood to be from month to month, if the rent agreed upon is monthly. The lease contract thus expires at the end of each month, unless prior thereto, the extension of said term has been sought by appropriate action and judgment is eventually rendered therein granting

the relief.23 In the case at bar, the lease period was not agreed upon by the parties. Rental was paid monthly, and respondent has been occupying the premises since 1958. As earlier stated, a written notice was served upon respondent on January 17, 2001 terminating the lease effective August 31, 2001. As respondent was notified of the expiration of the lease, effectively his right to stay in the premises had come to an end on August 31, 2001.24 The 2nd paragraph of Article 1687 provides, however, that in the event that the lessee has occupied the leased premises for over a year, the courts may fix a longer term for the lease. The power of the courts to establish a grace period is potestative or discretionary, depending on the particular circumstances of the case. Thus, a longer term may be granted where equities come into play, and may be denied where none appears, always with due deference to the parties freedom to contract.25 Where a petitioner has been deprived of its possession over the leased premises for so long a time, and it is shown that, indeed, the respondent was the recipient of substantial benefits while the petitioner was unable to have the full use and enjoyment of a considerable portion of its property, such militates against further deprivation by fixing a period of extension.26 Thus, in De Vera v. Court of Appeals,27 this Court found that the lessees continued possession of the property for more than five years from the supposed expiration of the lease sufficed as an extension of the period. In the present case, respondent has remained in possession of the property from the time the complaint for ejectment was filed on September 18, 2001 up to the present time. Effectively, respondents lease has been extended for more than five years, which time is, under the circumstances, deemed sufficient as an extension and for him to find another place to stay.1wphi1 As for respondents assigned errors reflected above, his petition for review, which was docketed as G.R. No. 163652, having been dismissed and the reconsideration of the dismissal having been denied with finality by Resolution of November 8, 2004,28 the decision of the Court of Appeals was, as to him, final and executory. At all events, his contention that the CA erred in increasing the rental from September 6, 2001 onwards at 10% per annum is bereft of merit. In Limcay v. Court of Appeals,29 which incidentally was a complaint for ejectment filed by herein petitioner against a lessee of one of its apartments located also in the same address as that of the property subject of this case, the Court upheld the RTCs authority to fix the reasonable value for the use and occupation of the premises from the expiration of the contract of lease.30 That the rental stipulated in the contract of lease that has expired or terminated may no longer be the reasonable value for the use and occupation of the premises as a result or by the reason of the changes or rise in values is settled.31 Respondent himself admitted in his Answer to the Complaint that the rental was increased yearly since 1989.32 He admitted too in his position paper that while petitioner only collected the amount of P4,671.65 as monthly rental, other tenants were constrained to pay P8,000 to P9,000 a month,33 which latter amount was the amount prayed for by petitioner in his complaint against respondent before the MeTC. Given the circumstances attendant to this case, this Court finds that the CAs increase of the rental at 10% per annum is fair and just, and is a reasonable valuation of the compensation due petitioner for the use and occupation of its property from the expiration of the contract of lease until the turn over by respondent of its possession. As the lease contract expired on August 30, 2001, petitioner is entitled to the 10% per

annum increase in rentals since September 1, 2001, not on September 6, 2001 as held by the CA. Hence, the monthly rental of the property in the succeeding years should be as follows: September 2001 to August 2002 P5,138.82 September 2002 to August 2003 P5,652.70 September 2003 to August 2004 P6,217.97 September 2004 to August 2005 P6,839.77 September 2005 to August 2006 P7,523.74 September 2006 onwards P8,276.11 WHEREFORE, the petition is GRANTED. Respondent, Uy Han Yong, and all persons claiming rights under him are ORDERED to immediately vacate and surrender possession of 3013 Interior No. 90, Nagtahan, St., Sampaloc Manila, and to pay monthly rentals in the amount of P5,138.82 from September 2001 to August 2002; P5,652.70 from September 2002 to August 2003; P6,217.97 from September 2003 to August 2004; P6,839.77 from September 2004 to August 2005; P7,523.74 from September 2005 to August 2006; and P8,276.11 from September 2006 until respondent finally vacates and surrenders possession of the property to petitioner, Malayan Realty, Inc. Costs against respondent. SO ORDERED.

Labastida vs. CA, G.R. 110174, 3/20/98* NONITO LABASTIDA and CONSTANCIA LABASTIDA, Petitioners, vs. COURT

OF APPEALS, JOSE C. DELESTE, SR., JOSE L. DELESTE, JR., RAUL L. DELESTE and RUBEN L. DELESTE, respondents.

D E C I S I O N MENDOZA, J.:

This is a petition seeking review of the decision of the Court of Appeals,[if !supportFootnotes][1][endif] holding petitioners estopped from questioning the jurisdiction of the Regional Trial Court of Iligan City[if !supportFootnotes][2][endif] in an ejectment case brought against them and affirming in toto the decision[if !supportFootnotes][3][endif]of the aforesaid trial court.

The facts are summarized in the following portion of the decision of the Court of Appeals: Plaintiffs [private respondents Jose C. Deleste, Sr., Jose L. Deleste, Jr., Raul L. Deleste and Ruben L. Deleste] are the owners of a parcel of land identified as Lot 226 of Iligan Cadastre survey and covered by TCT No. T-22148 located at Sabayle Street, Poblacion, Iligan City. A portion of said lot was leased to defendants [herein petitioners Nonito Labastida and Constancia Labastida] for the sum of P200.00 as monthly rental. On December 6, 1983, plaintiffs filed a case against defendants denominated as one for recovery of possession and damages with preliminary mandatory injunction (pp. 1-4, records). The complaint alleged, among others, that in the latter part of 1979 plaintiffs served notice to the occupants-lessees on their land, including defendants, to vacate the property because the owners would erect a commercial building thereon; that defendants, instead of heeding the request, repaired their (defendants) building, put additional constructions on the lot, partitioned the first storey of the building and converted the same into four (4) stores or business spaces and subleased the same to other persons without the knowledge and consent of the plaintiffs; that on October 24, 1980 or after other previous notices, plaintiffs sent a written demand to defendants to vacate the land but the latter refused; that again, on February 20, 1983 plaintiffs made and sent another written notice to defendants to vacate but to no avail; and that plaintiffs suffered actual damage in the amount of P40,000.00 which was the increase of construction materials and labor costs since 1979 and moral damages in the amount of P100,000.00. Plaintiffs prayed that defendants be ordered, inter alia, to remove their building, makeshift structures and fence, vacate the premises and pay defendants the sum of P100,000.00 as moral damages and P40,000.00 for actual damages or the difference of the cost of construction materials and labor in 1979 and at the time when the defendants will be able to vacate the premises. Defendants filed a motion to dismiss the complaint on two grounds, namely: (a) lack of jurisdiction of the trial court over the person of one of the defendants and over the nature or subject matter of the action and (b) pendency of an ejectment case filed by the plaintiffs against the same defendants in the municipal court of Iligan City involving the same property. In support of the first ground, defendants contended that [in as much] as the written notice to vacate was only mailed to defendants last February 20, 1983 and there is no showing that defendants even received said notice to vacate and therefore there is no evidence to show that the one (1) year period has elapsed from the time defendants received the written notice to vacate, coupled by the fact that this is a clear case of Unlawful Detainer and this case was filed on December 6, 1983, therefore, the court that has jurisdiction over the case is the Municipal Trial Court in Cities, Iligan City, as provided for in Sections 1 and 2 of Rule 70, of the Revised Rules of Court. Additionally,

defendants counsel allegedly failed to contact the other defendant, Constancia Labastida, so that no jurisdiction had been acquired over her person. The motion to dismiss was denied by the lower court, ruling that the complaint was filed after one year from the date of demand. The trial court also said that it was the manifestation of defendants counsel in open court that summons was in fact served on Constancia Labastida. On the issue of lis pendens, it was brought out that the ejectment case was dismissed on December 2, 1983 or before the complaint in Civil Case No. 186 was filed. In their answer, defendants alleged that no verbal or written demand to vacate was made by the plaintiffs in 1979 or in 1980 and that if ever there was any demand it was on February 20, 1983. They alleged that they were personally operating the small sari-sari store, carinderia and snack center whose capitalization did not exceed P5,000.00. They insisted that the house was residential and denied that they expanded the area of their occupancy by building additional structures, make-shifts or fence thereon. As affirmative defenses, defendants reiterated their defense of lack of jurisdiction of the trial court, insisting that the case should have been filed before the municipal court.[if !supportFootnotes][4][endif]

Petitioners also claimed before the trial court that the case was covered by the Rent Control Law (B.P. Blg. 25) and the Urban Land Reform Act (P.D. No. 1517) and therefore private respondents did not have a cause of action against them.

The trial court gave judgment for the private respondents based on the findings . . . that the contract of lease was on a month-to-month basis which gave the plaintiffs the right to eject the defendants after the expiration of each month; that the demands to vacate had been made more than a year before the filing of the complaint; that [in violation of the provisions of B.P. Blg. 25] defendants had subleased portions of the premises for business purposes; that even assuming that the beauty parlor, carinderia and snack center in the premises were operated by defendants themselves, the total capitalization thereof was more than P6,000.00; that defendants failed to pay the monthly rentals starting March, 1981.[if !supportFootnotes][5][endif] Petitioners appealed to the Court of Appeals which, as already stated, affirmed the decision of the trial court.

The basic issue raised in the petition before us is whether the trial court had jurisdiction to try the case filed against petitioners. The subsidiary questions are whether the action is for recovery of possession (accion publiciana) or for ejectment (desahucio) and whether it was brought within one year. First. Although entitled For Recovery of Possession, Damages, with Preliminary Mandatory Injunction, it is evident from the allegations of the complaint filed by private respondents that the case was actually for unlawful detainer. Thus, the complaint alleged in pertinent parts:[if !supportFootnotes][6][endif] 2. That your plaintiffs are the absolute and registered owners in common of a parcel of a commercial lot situated at Sabayle Street, Poblacion, Iligan City which is more particularly described hereunder as follows, to wit: COVERED BY TRANSFER CERTIFICATE OF TITLE NO. T-22,148 (a.f.) . . . A parcel of land (Lot #226 of the cadastral survey of Iligan, Cadastral Case #N-1, LRC Cad. Rec. #N-146), with improvements thereon, situated in the City of Iligan. Bounded on the N. by Sabayle St.; on the E. by Lots Nos. 227 & 2772; on the S. by Lot #221; and on the W. by Lots Nos. 221 & 220; containing a total area of 1117 square meters, more or less, and declared for taxation purposes in the Office of the City Assessor of Iligan City under Tax Declaration No. 79-57502 for the year 1982...

a portion of which is being occupied by the herein defendants at a monthly rental of P200.00, the lease agreement being verbal and on a month to month basis; 3. That sometime in the latter part of the year 1979, plaintiffs verbally adviced and served notice to the occupants/lessees of the land above-described, especially those along Sabayle Street including the herein defendants, to vacate the land for the reason that the plaintiffs are ready to erect a commercial building on the land above-described, but the herein defendants instead of heeding to the plaintiffs notice to vacate, repaired their building, replaced the nipa roofing with galvanized sheets, and put up additional constructions on the lot, fencing the backyard which was not included in the lease agreement; 4. That aside from the expansions made by defendants on their house, they instead partitioned the first storey such that four (4) stores or business spaces were subleased to other persons without the knowledge and consent o