G.R. No.

L-13298

November 19, 1918

with the objectors and excluded parcel No. 1 from registration. So

much for the facts.

CORNELIO
RAMOS, petitioner-appellant,
vs.
THE DIRECTOR OF LANDS, objector-appellee.
Basilio
Aromin
for
Office of the Solicitor-General Paredes for appellee.

appellant.

MALCOLM, J.:
This is an appeal by the applicant and appellant from a judgment
of the Court of First Instance of Nueva Ecija, denying the
registration of the larger portion of parcel No. 1 (Exhibit A of the
petitioner), marked by the letters A, B, and C on the plan, Exhibit
1, of the Government.
One Restituto Romero y Ponce apparently gained possession of
a considerable tract of land located in the municipality of San
Jose, Province of Nueva Ecija, in the year 1882. He took
advantage of the Royal Decree of February 13, 1894, to obtain a
possessory information title to the land, registered as such on
February 8, 1896. Parcel No. 1, included within the limits of the
possessory information title of Restituto Romero, was sold in
February, 1907, to Cornelio Ramos, the instant petitioner, and his
wife Ambrosia Salamanca.
Ramos instituted appropriate proceedings to have his title
registered. Opposition was entered by the Director of Lands on
the ground that Ramos had not acquired a good title from the
Spanish government and by the Director of Forestry on the
ground that the first parcel was forest land. The trial court agreed

As to the law, the principal argument of the Solicitor-General is

based on the provisions of the Spanish Mortgage Law and of the
Royal Decree of February 13, 1894, commonly known as the
Maura Law. The Solicitor-General would emphasize that for land
to come under the protective gis of the Maura Law, it must have
been shown that the land was cultivated for six years previously,
and that it was not land which pertained to the "zonas forestales."
As proof that the land was, even as long ago as the years 1894 to
1896, forestal and not agricultural in nature is the fact that there
are yet found thereon trees from 50 to 80 years of age.
We do not stop to decide this contention, although it might be
possible, following the doctrine laid down by the United States
Supreme Court with reference to Mexican and Spanish grantes
within the United States, where some recital is claimed to be
false, to say that the possessory information, apparently having
taken cognizance of the requisites for title, should not now be
disturbed. (Hancock vs. McKinney [1851], 7 Tex., 192; Hornsby
and Roland vs. United States [1869], 10 Wall., 224.) It is
sufficient, as will later appear, merely to notice that the
predecessor in interest to the petitioner at least held this tract of
land under color of title.
Subsection 6 of section 54, of Act No. 926, entitled The Public
Land Law, as amended by Act No. 1908, reads as follows:
6. All persons who by themselves or their predecessors
and interest have been in the open, continuous,
exclusive, and notorious possession and occupation of
agricultural public lands, as defined by said Act of
Congress of July first, nineteen hundred and two, under a
bona fide claim of ownership except as against the

Government, for a period of ten years next preceding the

twenty-sixth day of July, nineteen hundred and four,
except when prevented by war or force majeure, shall be
conclusively presumed to have performed all the
conditions essential to a government grant and to have
received the same, and shall be entitled to a certificate of
title to such land under the provisions of this chapter.
There are two parts to the above quoted subsection which must
be discussed. The first relates to the open, continuous, exclusive,
and notorious possession and occupation of what, for present
purposes, can be conceded to be agricultural public land, under a
bona fide claim of ownership.
Actual possession of land consists in the manifestation of acts of
dominion over it of such a nature as a party would naturally
exercise over his own property. Relative to actuality of
possession, it is admitted that the petitioner has cultivated only
about one fourth of the entire tract. This is graphically portrayed
by Exhibit 1 of the Government, following:

The question at once arises: Is that actual occupancy of a part of

the land described in the instrument giving color of title sufficient
to give title to the entire tract of land?
lawphil.net

The doctrine of constructive possession indicates the answer.

The general rule is that the possession and cultivation of a portion
of a tract under claim of ownership of all is a constructive
possession of all, if the remainder is not in the adverse
possession of another. (Barr vs. Gratz's Heirs [1819], 4 Wheat.,
213; Ellicott vs. Pearl [1836], 10 Pet., 412; Smith vs. Gale [1892],
144 U. S., 509.) Of course, there are a number of qualifications to

the rule, one particularly relating to the size of the tract in

controversy with reference to the portion actually in possession of
the claimant. It is here only necessary to apply the general rule.
The claimant has color of title; he acted in good faith; and he has
had open, peaceable, and notorious possession of a portion of
the property, sufficient to apprise the community and the world
that the land was for his enjoyment. (See arts. 446, 448, Civil
Code.) Possession in the eyes of the law does not mean that a
man has to have his feet on every square meter of ground before
it can be said that he is in possession. Ramos and his
predecessor in interest fulfilled the requirements of the law on the
supposition that he premises consisted of agricultural public land.
The second division of the law requires consideration of the term
"agricultural public land." The law affirms that the phrase is
denied by the Act of Congress of July 1st, 1902, known as the
Philippine bill. Turning to the Philippine Bill, we find in sections 13
to 18 thereof that three classes of land are mentioned. The first is
variously denominated "public land" or "public domain," the
second "mineral land," and the third "timber land." Section 18 of
the Act of Congress comes nearest to a precise definition, when it
makes the determination of whether the land is more valuable for
agricultural or for forest uses the test of its character.
Although these sections of the Philippine Bill have come before
the courts on numerous occasions, what was said in the case of
Jones vs. Insular Government ([1906], 6 Phil., 122), is still true,
namely: "The meaning of these sections is not clear and it is
difficult to give to them a construction that will be entirely free
from objection." In the case which gave most serious
consideration to the subject (Mapa vs. Insular Government
[1908], 10 Phil., 175), it was found that there does exist in the Act
of Congress a definition of the phrase "agricultural public lands."
It was said that the phrase "agricultural public lands" as used in

Act No. 926 means "those public lands acquired from Spain
which are not timber or mineral lands."
The idea would appear to be to determine, by exclusion, if the
land is forestal or mineral in nature and, if not so found, to
consider it to be agricultural land. Here, again, Philippine law is
not very helpful. For instance, section 1820 of the Administrative
Code of 1917 provides: "For the purposes of this chapter, 'public
forest' includes, except as otherwise specially indicated, all
unreserved public land, including nipa and mangrove swamps,
and all forest reserves of whatever character." This definition of
"public forest," it will be noted, is merely "for the purposes of this
chapter." A little further on, section 1827 provides: "Lands in
public forests, not including forest reserves, upon the certification
of the Director of Forestry that said lands are better adapted and
more valuable for agricultural than for forest purposes and not
required by the public interests to be kept under forest, shall be
declared by the Department Head to be agricultural lands." With
reference to the last section, there is no certification of the
Director of Forestry in the record, as to whether this land is better
adapted and more valuable for agricultural than for forest
purposes.
The lexicographers define "forest" as "a large tract of land
covered with a natural growth of trees and underbrush; a large
wood." The authorities say that he word "forest" has a significant,
not an insignificant meaning, and that it does not embrace land
only partly woodland. It is a tract of land covered with trees,
usually of considerable extent. (Higgins vs. Long Island R. Co.
[1908], 114 N. Y. Supp., 262; People vs. Long Island R. Co.
[1908], 110 N. Y. Supp., 512.)
The foresters say that no legal definition of "forest" is practicable
or useful. B. H. Baden-Powell, in his work on Forest Law of India,
states as follows:

Every definition of a forest that can be framed for legal

purposes will be found either to exclude some cases to
which the law ought to apply, or on the other hand, to
include some with which the law ought not to interfere. It
may be necessary, for example, to take under the law a
tract of perfectly barren land which at present has neither
trees, brushwood, nor grass on it, but which in the course
f time it is hoped will be "reboise;" but any definition wide
enough to take in all such lands, would also take in much
that was not wanted. On the other hand, the definition, if
framed with reference to tree-growth, might (and indeed
would be almost sure to) include a garden, shrubbery,
orchard, or vineyard, which it was not designed to deal
with.
B. E. Fernow, in his work on the Economics of Forestry, states as
follows:
A forest in the sense in which we use the term, as an
economic factor, is by no means a mere collection of
trees, but an organic whole in which all parts, although
apparently heterogeneous, jumbled together by accident
as it were and apparently unrelated, bear a close relation
to each other and are as interdependent as any other
beings and conditions in nature.
The Director of Forestry of the Philippine Islands has said:
During the time of the passage of the Act of Congress of
July 1, 1902, this question of forest and agricultural lands
was beginning to receive some attention and it is clearly
shown in section 18 of the above mentioned Act; it leaves
to the Bureau of Forestry the certification as to what lands
are for agricultural or forest uses. Although the Act states
timber lands, the Bureau has in its administration since

the passage of this act construed this term to mean forest

lands in the sense of what was necessary to protect, for
the public good; waste lands without a tree have been
declared more suitable for forestry in many instances in
the past. The term 'timber' as used in England and in the
United States in the past has been applied to wood
suitable for construction purposes but with the increase in
civilization and the application of new methods every
plant producing wood has some useful purpose and the
term timber lands is generally though of as synonymous
with forest lands or lands producing wood, or able to
produce wood, if agricultural crops on the same land will
not bring the financial return that timber will or if the same
land is needed for protection purposes.
xxx

xxx

xxx

The laws in the United States recognize the necessity of

technical advice of duly appointed boards and leave it in
the hands of these boards to decide what lands are more
valuable for forestry purposes or for agricultural purposes.
In the Philippine Islands this policy is follows to as great
an extent as allowable under the law. In many cases, in
the opinion of the Bureau of Forestry, lands without a
single tree on them are considered as true forest land.
For instance, mountain sides which are too steep for
cultivation under ordinary practice and which, if cultivated,
under ordinary practice would destroy the big natural
resource of the soil, by washing, is considered by this
bureau as forest land and in time would be reforested. Of
course, examples exist in the Mountain Province where
steep hillsides have been terraced and intensive
cultivation practiced but even then the mountain people
are very careful not to destroy forests or other vegetative

cover which they from experience have found protect their

water supply. Certain chiefs have lodged protests with the
Government against other tribes on the opposite side of
the mountain cultivated by them, in order to prevent other
tribes from cutting timber or destroy cover guarding their
source of water for irrigation.

If cultivated, state crops being grown and approximate

number of hectares under cultivation. (Indicate on
sketch.)

Dr. M. S. Shaler, formerly Dean of the Lawrence Scientific

School, remarked that if mankind could not devise and
enforce ways dealing with the earth, which will preserve
this source of like "we must look forward to the time,
remote it may be, yet equally discernible, when out kin
having wasted its great inheritance will fade from the
earth because of the ruin it has accomplished."

State what portion of the tract is wooded, name of

important timber species and estimate of stand in cubic
meters per hectare, diameter and percentage of each
species.

The method employed by the bureau of Forestry in

making inspection of lands, in order to determine whether
they are more adapted for agricultural or forest purposes
by a technical and duly trained personnel on the different
phases of the conservation of natural resources, is based
upon a previously prepared set of questions in which the
different characters of the land under inspection are
discussed, namely:
Slope of land: Level; moderate; steep; very steep.
Exposure: North; South; East; West.
Soil: Clay; sandy loam; sand; rocky; very rocky.
Character of soil cover: Cultivated, grass land, brush land,
brush land and timber mixed, dense forest.

For growth of what agricultural products is this land

suitable?

If the land is covered with timber, state whether there is

public land suitable for agriculture in vicinity, which is not
covered with timber.
Is this land more valuable for agricultural than for forest
purposes? (State reasons in full.)
Is this land included or adjoining any proposed or
established forest reserve or communal forest?
Description and ownership of improvements.
If the land is claimed under private ownership, give the
name of the claimant, his place of residence, and state
briefly (if necessary on a separate sheet) the grounds
upon which he bases his claim.
When the inspection is made on a parcel of public land
which has been applied for, the corresponding certificate
is forwarded to the Director of Lands; if it is made on a
privately claimed parcel for which the issuance of a title is
requested from the Court of Land Registration, and the
inspection shows the land to be more adapted for forest
purposes, then the Director of Forestry requests the

Attorney-General to file an opposition, sending him all

data collected during the inspection and offering him the
forest officer as a witness.
It should be kept in mind that the lack of personnel of this
Bureau, the limited time intervening between the notice
for the trial on an expediente of land and the day of the
trial, and the difficulties in communications as well as the
distance of the land in question greatly hinder the
handling of this work.
In the case of lands claimed as private property, the
Director of Forestry, by means of his delegate the
examining officer, submits before the court all evidence
referring to the present forest condition of the land, so that
the court may compare them with the alleged right by the
claimant. Undoubtedly, when the claimant presents a title
issued by the proper authority or evidence of his right to
the land showing that he complied with the requirements
of the law, the forest certificate does not affect him in the
least as such land should not be considered as a part of
the public domain; but when the alleged right is merely
that of possession, then the public or private character of
the parcel is open to discussion and this character should
be established not simply on the alleged right of the
claimant but on the sylvical condition and soil
characteristics of the land, and by comparison between
this area, or different previously occupied areas, and
those areas which still preserve their primitive character.
Either way we look at this question we encounter difficulty.
Indubitably, there should be conservation of the natural resources
of the Philippines. The prodigality of the spendthrift who
squanders his substance for the pleasure of the fleeting moment
must be restrained for the less spectacular but surer policy which

protects Nature's wealth for future generations. Such is the wise

stand of our Government as represented by the Director of
Forestry who, with the Forester for the Government of the United
States, believes in "the control of nature's powers by man for his
own good." On the other hand, the presumption should be, in lieu
of contrary proof, that land is agricultural in nature. One very
apparent reason is that it is for the good of the Philippine Islands
to have the large public domain come under private ownership.
Such is the natural attitude of the sagacious citizen.
If in this instance, we give judicial sanction to a private claim, let it
be noted that the Government, in the long run of cases, has its
remedy. Forest reserves of public land can be established as
provided by law. When the claim of the citizen and the claim of
the Government as to a particular piece of property collide, if the
Government desires to demonstrate that the land is in reality a
forest, the Director of Forestry should submit to the court
convincing proof that the land is not more valuable for agricultural
than for forest purposes. Great consideration, it may be stated,
should, and undoubtedly will be, paid by the courts to the opinion
of the technical expert who speaks with authority on forestry
matters. But a mere formal opposition on the part of the AttorneyGeneral for the Director of Forestry, unsupported by satisfactory
evidence will not stop the courts from giving title to the claimant.
We hold that the petitioner and appellant has proved a title to the
entire tract of land for which he asked registration, under the
provisions of subsection 6, of section 54, of Act No. 926, as
amended by Act No. 1908, with reference to the Philippine Bill
and the Royal Decree of February 13, 1894, and his possessory
information.
Judgment is reversed and the lower court shall register in the
name of the applicant the entire tract in parcel No. 1, as

described in plan Exhibit A, without special finding as to costs. So

ordered.

[G.R. No. 102858. July 28, 1997]

THE DIRECTOR OF LANDS, petitioner, vs.

COURT OF APPEALS and TEODORO
ABISTADO, substituted by MARGARITA,
MARISSA, MARIBEL, ARNOLD and
MARY
ANN,
all
surnamed
ABISTADO, respondents.
DECISION
PANGANIBAN, J.:

Is newspaper publication of the notice of initial

hearing in an original land registration case
mandatory or directory?
Statement of the Case
The Court of Appeals ruled that it was merely
procedural and that the failure to cause such
publication did not deprive the trial court of its
authority to grant the application. But the Solicitor
General disagreed and thus filed this petition to set
aside the Decision promulgated on July 3, 1991
and the subsequent Resolution promulgated on
November 19, 1991 by Respondent Court of
Appeals in CA-G.R. CV No. 23719. The
dispositive portion of the challenged Decision
reads:
[1]

A-8) 315-D located in Poblacion Mamburao, Occidental

Mindoro.
The oppositions filed by the Republic of the Philippines
and private oppositor are hereby dismissed for want of
evidence.
Upon the finality of this decision and payment of the
corresponding taxes due on this land, let an order for the
issuance of a decree be issued."
The Facts

[2]

[3]

[4]

On December 8, 1986, Private Respondent

Teodoro Abistado filed a petition for original
registration of his title over 648 square meters of
land under Presidential Decree (PD) No. 1529.
The application was docketed as Land
Registration Case (LRC) No. 86 and assigned to
Branch 44 of the Regional Trial Court of
Mamburao, Occidental Mindoro. However, during
the pendency of his petition, applicant died. Hence,
his heirs -- Margarita, Marissa, Maribel, Arnold and
Mary Ann, all surnamed Abistado -- represented by
their aunt Josefa Abistado, who was appointed
their guardian ad litem, were substituted as
applicants.
[5]

"WHEREFORE, premises considered, the judgment of

dismissal appealed from is hereby set aside, and a new
one entered confirming the registration and title of
applicant, Teodoro Abistado, Filipino, a resident of
Barangay 7, Poblacion Mamburao, Occidental Mindoro,
now deceased and substituted by Margarita, Marissa,
Maribel, Arnold and Mary Ann, all surnamed Abistado,
represented by their aunt, Miss Josefa Abistado,
Filipinos, residents of Poblacion Mamburao, Occidental
Mindoro, to the parcel of land covered under MSI (IV-

[6]

The land registration court in its decision dated

June 13, 1989 dismissed the petition for want of
jurisdiction. However, it found that the applicants
through their predecessors-in-interest had been in
open, continuous, exclusive and peaceful
possession of the subject land since 1938.
In dismissing the petition, the trial court
reasoned:
[7]

"x x x. However, the Court noted that applicants failed

to comply with the provisions of Section 23 (1) of PD
1529, requiring the Applicants to publish the notice of
Initial Hearing (Exh. `E') in a newspaper of general
circulation in the Philippines. Exhibit `E' was only
published in the Official Gazette (Exhibits `F' and
`G'). Consequently, the Court is of the well considered
view that it has not legally acquired jurisdiction over the
instant application for want of compliance with the
mandatory provision requiring publication of the notice
of initial hearing in a newspaper of general circulation."
The trial court also cited Ministry of Justice
Opinion No. 48, Series of 1982, which in its
pertinent portion provides:
[8]

It bears emphasis that the publication requirement under

Section 23 [of PD 1529] has a two-fold purpose; the

first, which is mentioned in the provision of the

aforequoted provision refers to publication in the
Official Gazette, and is jurisdictional; while the second,
which is mentioned in the opening clause of the same
paragraph, refers to publication not only in the Official
Gazette but also in a newspaper of general circulation,
and is procedural. Neither one nor the other is
dispensable. As to the first, publication in the Official
Gazette is indispensably necessary because without it,
the court would be powerless to assume jurisdiction
over a particular land registration case. As to the
second, publication of the notice of initial hearing also
in a newspaper of general circulation is indispensably
necessary as a requirement of procedural due process;
otherwise, any decision that the court may promulgate
in the case would be legally infirm.
Unsatisfied, private respondents appealed to
Respondent Court of Appeals which, as earlier
explained, set aside the decision of the trial court
and ordered the registration of the title in the name
of Teodoro Abistado.
The subsequent motion for reconsideration was
denied in the challenged CA Resolution dated
November 19, 1991.

The Director of Lands represented by the

Solicitor General thus elevated this recourse to
us. This Court notes that the petitioners counsel
anchored his petition on Rule 65.This is an
error. His remedy should be based on Rule 45
because he is appealing a final disposition of the
Court of Appeals. Hence, we shall treat his petition
as one for review under Rule 45, and not for
certiorari under Rule 65.

to comply with the notice requirement of due

process.

The Issue

In reversing the decision of the trial court,

Respondent Court of Appeals ruled:

[9]

[11]

Private respondents, on the other hand,

contend that failure to comply with the requirement
of publication in a newspaper of general circulation
is a mere procedural defect.They add that
publication in the Official Gazette is sufficient to
confer jurisdiction.
[12]

[13]

Petitioner alleges that Respondent Court of

Appeals committed grave abuse of discretion in
holding
[10]

x x x that publication of the petition for registration of

title in LRC Case No. 86 need not be published in a
newspaper of general circulation, and in not dismissing
LRC Case No. 86 for want of such publication.
Petitioner points out that under Section 23 of
PD 1529, the notice of initial hearing shall be
published both in the Official Gazette and in a
newspaper of general circulation.According to
petitioner, publication in the Official Gazette is
necessary to confer jurisdiction upon the trial court,
and xxx in xxx a newspaper of general circulation

x x x although the requirement of publication in the

Official Gazette and in a newspaper of general
circulation is couched in mandatory terms, it cannot be
gainsaid that the law also mandates with equal force that
publication in the Official Gazette shall be sufficient to
confer jurisdiction upon the court.
Further, Respondent Court found that the
oppositors were afforded the opportunity to explain
matters fully and present their side. Thus, it
justified its disposition in this wise:
[14]

x x x We do not see how the lack of compliance with the

required procedure prejudiced them in any
way. Moreover, the other requirements of: publication in

the Official Gazette, personal notice by mailing, and

posting at the site and other conspicuous places, were
complied with and these are sufficient to notify any
party who is minded to make any objection of the
application for registration.
The Courts Ruling
We find for petitioner.
Newspaper Publication Mandatory
The pertinent part of Section 23 of Presidential
Decree No. 1529 requiring publication of the notice
of initial hearing reads as follows:
Sec. 23. Notice of initial hearing, publication, etc. -The court shall, within five days from filing of the
application, issue an order setting the date and hour of
the initial hearing which shall not be earlier than fortyfive days nor later than ninety days from the date of the
order.
The public shall be given notice of initial hearing of the
application for land registration by means of (1)
publication; (2) mailing; and (3) posting.
1. By publication. --

Upon receipt of the order of the court setting the time

for initial hearing, the Commissioner of Land
Registration shall cause a notice of initial hearing to be
published once in the Official Gazette and once in a
newspaper of general circulation in the Philippines:
Provided, however, that the publication in the Official
Gazette shall be sufficient to confer jurisdiction upon
the court. Said notice shall be addressed to all persons
appearing to have an interest in the land involved
including the adjoining owners so far as known, and `to
all whom it may concern.' Said notice shall also require
all persons concerned to appear in court at a certain date
and time to show cause why the prayer of said
application shall not be granted.
xxx xxx xxx
Admittedly, the above provision provides in
clear and categorical terms that publication in the
Official Gazette suffices to confer jurisdiction upon
the land registration court.However, the question
boils down to whether, absent any publication in a
newspaper of general circulation, the land
registration court can validly confirm and register
the title of private respondents.
We answer this query in the negative. This
answer is impelled by the demands of statutory

construction and the due process rationale behind

the publication requirement.

likewise imperative since the law included such

requirement in its detailed provision.

The law used the term shall in prescribing the

work to be done by the Commissioner of Land
Registration upon the latters receipt of the court
order setting the time for initial hearing. The said
word denotes an imperative and thus indicates the
mandatory character of a statute. While
concededly such literal mandate is not an absolute
rule in statutory construction, as its import
ultimately depends upon its context in the entire
provision, we hold that in the present case the term
must be understood in its normal mandatory
meaning. In Republic vs. Marasigan, the Court
through Mr. Justice Hilario G. Davide, Jr. held that
Section 23 of PD 1529 requires notice of the initial
hearing by means of (1) publication, (2) mailing
and (3) posting, all of which must be complied
with. If the intention of the law were otherwise, said
section would not have stressed in detail the
requirements of mailing of notices to all persons
named in the petition who, per Section 15 of the
Decree, include owners of adjoining properties,
and occupants of the land.Indeed, if mailing of
notices is essential, then by parity of reasoning,
publication in a newspaper of general circulation is

It should be noted further that land registration

is a proceeding in rem. Being in rem, such
proceeding requires constructive seizure of the
land as against all persons, including the state,
who have rights to or interests in the
property. An in
rem proceeding
is
validated
essentially through publication. This being so, the
process must strictly be complied with. Otherwise,
persons who may be interested or whose rights
may be adversely affected would be barred from
contesting an application which they had no
knowledge of. As has been ruled, a party as an
owner seeking the inscription of realty in the land
registration court must prove by satisfactory and
conclusive evidence not only his ownership thereof
but the identity of the same, for he is in the same
situation as one who institutes an action for
recovery of realty. He must prove his title against
the whole world. This task, which rests upon the
applicant, can best be achieved when all persons
concerned -- nay, the whole world -- who have
rights to or interests in the subject property are
notified and effectively invited to come to court and
show cause why the application should not be
granted. The elementary norms of due process

[15]

[16]

[17]

[18]

require that before the claimed property is taken

from concerned parties and registered in the name
of the applicant, said parties must be given notice
and opportunity to oppose.
It may be asked why publication in a
newspaper of general circulation should be
deemed mandatory when the law already requires
notice by publication in the Official Gazette as well
as by mailing and posting, all of which have
already been complied with in the case at
hand. The reason is due process and the reality
that the Official Gazette is not as widely read and
circulated as newspapers and is oftentimes
delayed in its circulation, such that the notices
published therein may not reach the interested
parties on time, if at all.Additionally, such parties
may not be owners of neighboring properties, and
may in fact not own any other real estate. In sum,
the all-encompassing in rem nature of land
registration cases, the consequences of default
orders issued against the whole world and the
objective of disseminating the notice in as wide a
manner as possible demand a mandatory
construction of the requirements for publication,
mailing and posting.

Admittedly, there was failure to comply with the

explicit publication requirement of the law. Private
respondents did not proffer any excuse; even if
they had, it would not have mattered because the
statute itself allows no excuses. Ineludibly, this
Court has no authority to dispense with such
mandatory requirement. The law is unambiguous
and its rationale clear. Time and again, this Court
has declared that where the law speaks in clear
and categorical language, there is no room for
interpretation, vacillation or equivocation; there is
room only for application. There is no alternative.
Thus, the application for land registration filed by
private respondents must be dismissed without
prejudice to reapplication in the future, after all the
legal requisites shall have been duly complied
with.
[19]

WHEREFORE, the petition is GRANTED and

the
assailed
Decision
and
Resolution
are REVERSED and SET ASIDE. The application
of private respondent for land registration
is DISMISSED without prejudice. No costs.
SO ORDERED.

appellate court dismissed herein petitioners' complaint and

declared private respondent Primitive Felipe de Jesus to be the
absolute owner entitled to the possession of the land in question
to the exclusion of petitioners.

G.R. No. 57092 January 21, 1993

EDGARDO DE JESUS, REMEDIOS DE JESUS, JUANITO DE
JESUS, JULIANA DE JESUS, JOSE DE JESUS, FLORDELIZA
DE JESUS, REYNALDO DE JESUS, ERNESTO DE JESUS,
PRISCILO DE JESUS, CORAZON DE JESUS, petitioners,
vs.
COURT OF APPEALS and PRIMITIVA FELIPE DE
JESUS, respondents.
Jose B. Soriano for petitioners.
Jose A. Aguiling and Paquito C. Ochoa for private respondent.

MELO, J.:
This has reference to a petition for review on certiorari seeking
the reversal of the decision of the Court of Appeals in CA-G.R.
No. 59613 (December 24, 1980, Sison, P.V., Cenzon. Asuncion
[P], JJ) which reversed the decision dated September 7, 1975 of
the then Court of First Instance of Bulacan. In consequence, the

The property in dispute is a parcel of residential land situated in

Dampol 2nd, Pulilan, Bulacan, bounded on the North by a
Vereda: on the South, by the Provincial Road; on the East, by
Catalino Tayag (Tayao); on the West, by Macario de Leon,
containing an area of 2565 square meters (Brief for the
Petitioners, p. 3), and covered by Tax Declaration No. 2383 of the
Office of the Provincial Assessor of Bulacan, in the name of
Victoriano Felipe (Exh. "5-C").
Respondent appellate court found the above-described parcel of
land to be the same parcel of land which was
. . . the subject of the Kasulatang-BilingMabibiling-Muli (Exh. 1) executed on November
25, 1932, by Emilia Camacho (surviving widow of
Catalino Esguerra), Jose C. Esguerra and
Socorro Esguerra, conveying or selling this land
to the spouses, Victoriano Felipe and Guillerma
de la Cruz, with right to repurchase the same
within a period of five years, but that the vendorsa-retro failed to repurchase the land. The vendorsa-retro were the heirs of the deceased Catalino
Esguerra. Since the date of the sale the spouses
Victoriano Felipe and Guillerma de la Cruz,
possessed and lived on this land. The appellant
[herein private respondent] was living with her
parents on the land, and upon their deaths, she
continued to live on and possess the same. (pp.
33-34, Rollo.)

On November 29, 1961 private respondent executed a sworn

statement declaring herself the only heir of the deceased
Victoriano Felipe and adjudicating to herself the ownership of the
land in question (Exh. "4").
More than twelve years later or on April 27, 1973, petitioners
herein filed in the Court of First Instance of Bulacan, an action for
recovery of ownership and possession and quieting of title to the
abovementioned piece of land covered by Tax Declaration No.
2383, alleging among others: "that their grandfather, Santiago de
Jesus during his lifetime owned the residential lot; that Santiago
de Jesus died before the outbreak of World War II, leaving three
(3) sons, namely: Mariano, Exequiel, and Jose, all surnamed de
Jesus; that Mariano de Jesus died on September 3, 1956 leaving
eight (8) surviving children, namely: Edgardo, Remedios, Juanita,
Juliano, Jose, Flordeliza, Reynaldo, and Ernesto, all surnamed de
Jesus and all of them plaintiffs; that Exequiel de Jesus died on
April 3, 1948, survived by two (2) children Priscilo and
Corazon, both surnamed de Jesus, also plaintiffs in this case;
while Jose de Jesus died before the outbreak of World War II
without any issue . . . "(p. 35, Record on Appeal).
The trial court found for the plaintiffs, petitioners herein. The
dispositive portion of the decision dated September 7, 1975
reads:
FOR ALL OF THE FOREGOING, judgment is
hereby rendered:
(1) Declaring the plaintiffs as having the better
right to ownership and possession of the
residential lot in question by virtue of hereditary
succession;

(2) Ordering the defendant to surrender the

ownership and possession of the said property to
the herein plaintiffs;
(3) Ordering the defendant to pay to the plaintiffs
the sum of P500.00 for and as attorney's fees,
and the costs of suit.
SO ORDERED. (pp. 56-57, Record, on Appeal.)
As earlier intimated, on appeal, the Court of Appeals set aside the
judgment of the trial court in a decision promulgated on
December
24,
1980
(pp. 32-38, Rollo), the dispositive portion of which reads:
IN
VIEW
OF
THE
FOREGOING
CONSIDERATION, finding serious errors to have
been committed by the trial court in its judgment,
the same is hereby set aside and another one
entered, dismissing the complaint, and declaring
the appellant to be the absolute owner, and
entitled to the possession of this land in question,
to the exclusion of plaintiffs-appellees. (p.
38, Rollo.)
Thus, the instant petition for review on certiorari which was filed
with this Court on August 13, 1981 (p. 9, Rollo) with the following
assigned errors:
I
THE COURT OF APPEALS ERRED IN SETTING
ASIDE THE JUDGMENT OF THE TRIAL COURT
WHICH AWARDED THE RESIDENTIAL LOT IN
QUESTION TO THE PETITIONERS BY VIRTUE

OF
HEREDITARY
SUCCESSION
AND
ORDERED THE PRIVATE RESPONDENT TO
SURRENDER
THE
OWNERSHIP
AND
POSSESSION OF THE SAME TO THEM.
II
THE COURT OF APPEALS ERRED IN RULING
THAT THE LAND DESCRIBED IN THE
PETITIONERS' COMPLAINT IS THE SAME
LAND WHICH IS THE SUBJECT OF THE SALE
WITH RIGHT TO REPURCHASE (Exh. 1)
EXECUTED ON NOVEMBER 5, 1932 BY THE
ESGUERRAS IN FAVOR OF THE PARENTS OF
THE PRIVATE RESPONDENT.
III
THE COURT OF APPEALS ERRED IN
DECLARING THE PRIVATE RESPONDENT TO
BE THE ABSOLUTE OWNER AND ENTITLED
TO THE POSSESSION OF THE LAND IN
QUESTION TO THE EXCLUSION OF THE
PETITIONERS.
IV
THE COURT OF APPEALS ERRED IN HOLDING
THAT THIS LAND WAS PURCHASED BY THE
PARENTS OF THE PRIVATE RESPONDENT
FROM THE HEIRS OF THE LATE CATALINO
ESGUERRA ON NOVEMBER 5, 1932 AND THE
PRIVATE RESPONDENT AND HER PARENTS
HAD
BEEN
IN
OPEN,
CONTINUOUS,
ADVERSE,
PUBLIC
AND
NOTORIOUS

POSSESSION OF THE SAME SINCE 1932 UP

TO THE PRESENT, IN THE CONCEPT OF
OWNER.
In effect, the sole issue in this petition boils down to this question:
Who has the right to the ownership and possession of the
residential lot subject matter of the case, petitioners by virtue of
hereditary succession, or private respondent who claims
ownership through purchase of the property by her parents?
According to the trial court, petitioners have the better right but
according to the appellate court, the property rightly belongs to
private respondent. In view of the fact that the findings of the trial
court and the appellate court are contrary to each other, this
Court shall exercise its authority of reviewing the evidence in
order to arrive at the correct facts based on the record (Director of
Lands vs. Court of Appeals, 117 SCRA 346 [1982]; Quality
Tobacco Corporation vs. Intermediate Appellate Court, 187 SCRA
210 [1990]; Valenzuela vs. Court of Appeals, 191 SCRA 1 [1990];
Shauf vs. Court of Appeals, 191 SCRA 713 [1990] ; Bustamante
vs. Court of Appeals, 194 SCRA 645 [1991).
It is not disputed that petitioners are the heirs of their late
grandfather, Santiago de Jesus; what is in dispute is their claim
that the residential lot in question belonged to their grandfather
and therefore theirs by hereditary succession (Brief for the
Respondent, pp. 8-9). Neither is it contradicted that Santiago de
Jesus was married to Maria Reyes, a widow with three children
by a prior marriage, namely: Basilio, Violeta, and Guillerma, the
last having been the mother of herein private respondent (tsn,
August 15, 1974, pp. 14-15; September 16, 1974, pp. 14-15, 3941).
The only documentary evidence of Santiago de Jesus' alleged
ownership of the residential lot in question is Tax Declaration No.

2384 (Exh. "A") in the name of Victoriano Felipe. Therein, Felipe

claimed ownership for tax purposes of a house of mixed materials
and a nipa roof, valued at P190.00 and constructed on the lot or
"solar" belonging to Santiago de Jesus. The statement therein
regarding Santiago de Jesus' ownership of the lot is supported by
the testimony of petitioners Edgardo de Jesus and Corazon de
Jesus-Masiglat, and three other witnesses. They asserted
personal knowledge of said fact which, they swore, was also
common knowledge in Dampol 2nd, Pulilan, Bulacan (tsn, August
15, 1974, p. 16; September 16, 1974, pp. 18, 39). As a child, for
instance, witness Antonio Roxas was frequently in the house of
his aunt, Maria Reyes, a sister of his mother. When his aunt was
still alive, she told him and his mother, in the presence of
Victoriano Felipe, that she had no right at all over the property,
including the old house, as it really belonged to Santiago de
Jesus (tsn, September 16, 1974, pp. 39, 46-49).

As such, the party challenging the recital of the document must

prove his claim with clear and convincing evidence (Diaz vs.
Court of Appeals, 145 SCRA 346 [1986]).

On the other hand, private respondent presented a contract of

sale with right of repurchase, "Kasulatang-Biling-Mabibiling-Muli"
(Exh. "1"), entered into in 1932 between her parents, Victoriano
Felipe and Guillerma de la Cruz, and the vendors-a-retro Emilia
Camacho, Socorro Esguerra, and Jose Esguerra; a "Sinumpaang
Salaysay"; or an affidavit of adjudication which private respondent
executed in 1961 (Exh. "4"); and tax declarations and official
receipts.

While both Socorro Olarte, a signatory to the "Kasulatang-BilingMabibiling-Muli" as one of the vendors-a-retro, and private
respondent testified that the land subject of the sale was covered
by Tax Declaration No. 5096 in the name of the original owner
Catalino Esguerra (tsn, October 21, 1974, p. 6 and December 18,
1974, pp. 3-5), they could not produce a copy of said tax
declaration. Capitalizing on said omission, petitioners presented a
certified true copy of said Tax Declaration No. 5096 (Exh. "G")
covering the year 1948 and which, however, concerns a piece of
lot owned by a certain Teodoro Sinson. Further, petitioners also
produced certified true copies of Tax Declarations Nos. 2214
(Exh. "H"), 2215 (Exh "I") and 2216 (Exh. "J"), all in the name of
Catalino Esguerra as owner, and all for the year 1967.

On the evidentiary value of these documents, it should be

recalled that the notarization of a private document converts it
into a public one and renders it admissible in court without further
proof of its authenticity (Joson vs. Baltazar, 194 SCRA 114
[1991]). This is so because a public document duly executed and
entered in the proper registry is presumed to be Valid and
genuine until the contrary is shown by clear and convincing proof
(Asido vs. Guzman, 37 Phil. 652 [1918]; U.S. vs. Enriquez, 1 Phil.
241 [1902]; Favor vs. Court of Appeals, 194 SCRA 308 [1991]).

There is no doubt that the pacto de retro deed of sale has

assumed the character of a public document, having been
notarized by then Justice of the Peace Francisco Makapugay, Jr.
in his capacity as Notary Public Ex-Oficio. Hence, it is presumed
valid and authentic until proven otherwise. Petitioners, however,
challenge this presumption of validity and authenticity. They
contend that private respondent's non-production of Tax
Declaration No. 5096, specifically mentioned in Exh. "1" as
containing the description of the piece of land subject of the
"Kasulatang-Biling-Mabibiling-Muli" shattered such presumption
and rendered suspect the latter document (Brief for the
Petitioners, pp. 9, 19-22).

Pablo H. Domingo, Senior Deputy Assessor, who was

subpoenaed to present in court Tax Declaration No. 5096 in the
name of Catalino Esguerra identified the above-mentioned
certified true copies of tax declarations as having been issued by

the Office of the Provincial Assessor of Bulacan (tsn, March 12,

1975, pp. 13-14). However, he said he could not bring with him a
copy of Tax Declaration No. 5096 in the name of Catalino
Esguerra as the records of the Office of the Provincial Assessor
only started with the year 1948 because the old Assessor's Office
was burned down during the early part of the liberation
(Transcript, March 12, 1975, pp. 5-6, 12).
It is significant to note that the land covered by Tax Declaration
No. 5096 (Exh. "G") described therein as bamboo land, was
previously covered by Tax Declaration No. 233 for the same
owner, while Tax Declaration No. 2383 (Exh. "5-C") beginning
with the year 1948 and covering the residential lot in question
declared in the name of Victoriano Felipe, cancelled Tax
Declaration No. 5326 (Exh. "5-C-1"). An uncertified copy of said
Tax Declaration No. 5326 for Victoriano Felipe purporting to
commence with the year 1939 allegedly superseded Tax
Declaration No. 252 in the name of Catalino Esguerra
(Exh. "3").
In other words, the piece of residential lot covered by Tax
Declaration No. 2383 (Exh. "5"), or by Tax Declaration No. 252
(Exh. "3") at around the time of the alleged sale, until superseded
by Tax Declaration No. 5326 (Exh. "5-C-1") beginning with the
year 1939, is not the piece of land covered by Tax Declaration
No. 5096 specifically referred to in Exh. "1" as the subject of the
"Kasulatang-Biling-Mabibiling-Muli". Thus, the fact that Guillerma
de la Cruz, mother of private respondent, made real property tax
payments purportedly on Tax Declaration No. 5096 for the years
1935 (Exh. "2-d" and "2-e") and 1936 (Exh. "2-b") and probably
for the years 1933, 1934, 1937 and 1938, in the name of Catalino
Esguerra neither alters the fact that the piece of land covered by
Tax Declaration No. 2383 (Exh. "5") is not the subject of the
"Kasulatang-Biling-Mabibiling-Muli" (Exh. "1") nor demonstrates

that the payments were made for the residential lot under
litigation.
It is, therefore, evident that Tax Declaration No. 5096 was
inexistent at the time of the alleged sale. By a simply analysis of
the different tax declarations presented as evidence in this case,
it is likewise clear that when by virtue of the alleged sale, a new
tax declaration numbered 5326, was made in 1938 in the name of
Victoriano Felipe (Exh. "5-C-1"), what was cancelled was Tax
Declaration No. 252 (Exh. "3"), not Tax Declaration No. 5096
which supposedly covered the property subject of the
"Kasulatang-Biling-Mabibiling-Muli". It should be noted that the
property under Tax Declaration No. 5326 bears an identical
description to the property under litigation. Thus, the inevitable
conclusion is that, without any legal basis, Victoriano Felipe had
declared himself the owner of the disputed property for tax
purposes. Tax Declaration No. 5326 thereafter became the basis
for
Tax
Declaration
No. 2383 in 1948 (Exh. "5-C") until it was cancelled and new tax
declarations were made in the name of private respondent, viz.,
Tax Declaration No. 9453 in 1962 (Exh. "5-b"), then Tax
Declaration No. 2657 in 1967 (Exh. "5") and finally Tax
Declaration No. 2962 in 1974 (Exh. "5-A").
As earlier stated, Guillerma de la Cruz had also been paying real
property tax on the house described as located in Dampol 2nd in
the name of Victoriano Felipe under Tax Declaration No. 14984
since 1933 (Exh. "2-C"), and then under Tax Declaration No.
3975 since 1941 (Exh. "2-4") until 1947, and under Tax
Declaration No. 2384 in 1948. By a twist of fate, however, Tax
Declaration No. 2384 describes the house, among others, as
located in the residential lot belonging to Santiago de Jesus or
"solar de Santiago de Jesus" (Exh. "A-1"). While real property tax
continued to be paid under the latter declaration until 1958 (Exh.
"2-y"), by stating in said tax declaration that his house was

located in the land of Santiago de Jesus. Victoriano Felipe

recognized and admitted the ownership of Santiago de Jesus
over the residential lot involved herein. Such admission puts to
naught the claim of private respondent for when one derives title
to property from another, the act, declaration or omission of the
latter in relation to the property is evidence against the former
(Rolleza vs. Court of Appeals, 174 SCRA 354 (1989]).
The authenticity of the signature of Victoriano Felipe in the deed
of sale with right to repurchase is also in question. Both Moises
de Jesus and Antonio Roxas testified that Victoriano Felipe could
not even vote as he did not know how to read and write (tsn,
September 16, 1974, pp. 30, 42). Although Socorro Esguerra
Olarte identified the signature of Victoriano Felipe on the
"Kasulatang-Biling-Mabibiling-Muli" as his (tsn, October 21, 1974,
p. 13), she also testified that Victoriano Felipe has a brother who
looked exactly like Victoriano (tsn, October 21, 1974, p. 36). On
the issue, all that private respondent could say was that her father
studied thecartilla (tsn, January 24, 1975, p. 8).
Under the circumstances, there is strong, convincing, and
conclusive proof of the nullity and falsity of Exhibit "1". Its
evidentiary nature cannot, therefore, be sustained (Legaspi vs.
Court of Appeals, 142 SCRA 82 [1986]). Even if the document
were to be considered simply as a private document, it would still
need evidence of its due execution and authenticity even if it is
already more than 30 years old as it cannot be considered
unblemished by any circumstance of suspicion (Heirs of Demetria
Lacsa vs. Court of Appeals, 197 SCRA 234 [1991]).
Consequently, the affidavit of adjudication executed by private
respondent on May 21, 1961 (Exh. "4"), has no evidentiary value
as it has become baseless. Furthermore, private respondent
falsely stated therein that she is the only heir of Victoriano Felipe
for, at the time of its execution, her mother, Guillerma de la Cruz,

was still living. Guillerma de la Cruz died on April 23, 1964 (Exh.
"B"), three years after the "Sinumpaang Salaysay" (Exh. "4") was
executed. Moreover, the tax receipts and declarations of
ownership for tax purposes upon which private respondent
basically anchors her claim, are not incontrovertible evidence of
ownership; they only become evidence of ownership acquired by
prescription when accompanied by proof of actual possession of
the property (Tabuena vs. Court of Appeals, 196 SCRA 650
[1991]; Rojas vs. Court of Appeals, 192 SCRA 709 [1992]).
On the issue of ownership by acquisitive prescription, private
respondent contends: "Granting that it was formerly owned by
their late grandfather, they (petitioners) have lost whatever right
they may have over the land by extinctive prescription" for the
reason that she, private respondent has acquired the same by
acquisitive prescription (Brief for the Respondents, p. 9), citing
Section 41 of the old Code of Civil Procedure which states:
Sec. 41. Title to Land by Prescription. Ten
years of actual adverse possession by any person
claiming to be the owner for that time of any land
or interest in land, uninterruptedly, continuously
for ten years by occupancy, descent, grants, or
otherwise, in whatever way such occupancy may
have commenced or continued, shall vest in every
actual possessor of such land, a full and complete
title . . . .
Corazon de Jesus Masiglat testified that from 1930 to 1952, the
period of time she was living in the house her grandfather erected
on the contested property, her grandmother, Victoriano Felipe,
Guillerma de la Cruz, and private respondent also lived there (tsn,
July 16, 1974, p. 23). She was corroborated by petitioner
Edgardo de Jesus who also testified that in 1932 up to the time of
his death in 1948, Exequiel de Jesus was taking charge of the

property and that while the parents of private respondent were

the ones paying the real property taxes the money therefor came
from Exequiel (tsn, July 16, 1974, pp. 11-14). Witness Salvador
Esguerra testified that Victoriano Felipe began to reside in the
house when he married Guillerma de la Cruz and that Corazon
and her father, Exequiel, also resided there after the death of
Santiago de Jesus (tsn, August 15, 1974, pp. 14, 21, 22). Moises
de Jesus, for his part, testified that while Victoriano Felipe started
staying in the property only when the children of Santiago de
Jesus had died, Corazon de Jesus continued to reside there (tsn,
September 16, 1974, p. 27).
In her own defense private respondent first testified that Corazon
de Jesus never lived with them and that Exequiel de Jesus never
went to their place (tsn., October 11, 1974, pp. 35-36). She did
not contradict, however, the testimony of Edgardo de Jesus on
rebuttal that he himself at the age of 12 used to stay in the house
and was witness to the occasion when Corazon fell in a ditch
going towards their place, that as a result of such accident,
Corazon sustained a permanent deformity on one hand; and that
Corazon left the place only in 1952 when she got married (tsn,
April 23, 1975, pp. 23-24). Neither did private respondent or her
witnesses
traverse
the
testimony
of
Corazon
de
Jesus-Masiglat, also on rebuttal, that since childhood she had
been residing in the house owned by her grandfather Santiago de
Jesus, together with private respondent and the latter's parents,
and actually left the place only in 1952: that her parents as well
as her child died in that house; and that private respondent was,
in fact, the one who caused the registration of her child's death
(tsn, April 23, 1975, p. 25). Even Socorro Esguerra Olarte,
witness for private respondent, testified that she remembers
Exequiel de Jesus as he was always around whenever she
visited the place and he was the one who got santol fruits for her
sometimes (tsn, September 23, 1974, p. 17).

It thus appears that Victoriano Felipe was residing in the house of

Santiago de Jesus simply because he was married to Guillerma
de la Cruz, daughter of Maria Reyes by a first marriage, who,
obviously, was living with her mother who had taken Santiago de
Jesus for her second husband. In effect, their possession of the
contested lot was neither exclusive nor in the concept of owner.
Possession, to constitute the foundation of a prescriptive right,
must be possession under a claim of title or it must be adverse or
in the concept of owner or concepto de dueo(Ordoez vs. Court
of Appeals, 188 SCRA 109 [1990]; Coronado vs. Court of
Appeals, 191 SCRA 814 [1990]; Manila Electric Company vs.
Intermediate Appelate Court, 174 SCRA 313 [1989]).
In this case, Victoriano Felipe and his family were residing in the
land by mere tolerance. There is no way of knowing how the
house on the lot was described in Tax Declaration Nos. 14984
and 3975, but, to repeat, in Tax Declaration No. 2384 which
commenced with the year 1948 (Exh. "A"), the house was
described as constructed on the lot or solar of Santiago de Jesus
up to the year 1961 when private respondent was still paying
property
tax
(Exh.
"2-x").
Significantly, the "Kasulatang-Biling-Mabibiling-Muli" was not
even given to private respondent by her parents; she admitted
having found it in the house although they mentioned its
existence to her when they were still alive (tsn, December 18,
1974, pp. 18-19). Under the circumstances, the prescriptive
period cannot be considered to have accrued during the lifetime
of Victoriano Felipe.
It is interesting to note that when private respondent executed her
"Sinumpaang Salaysay" (Exh. "4") adjudicating the disputed lot to
herself on the basis of the contract of sale as no repurchase had
been made by the vendors of retro, Exequiel de Jesus was

already dead and Corazon de Jesus-Masiglat was no longer

residing in the property in question. As she was in possession of
the property, private respondent then had it declared in her name
for real property tax purposes under Tax Declaration No. 9453
(Exh. "5-b") thereby cancelling Tax Declaration No. 2383 (Exh. "5b-1") which was in the name of Victoriano Felipe.
As to Tax Declaration No. 2384, the last vestige of Santiago de
Jesus' ownership of the property in question, there is no evidence
on record as to whether private respondent had it cancelled, had
a new declaration made on the property in her name, or whether
she continued paying tax after her payment for the year 1961. It
was established, however, through the testimony of Salvador
Esguerra, that the old house was demolished and a new
bungalow was constructed on the lot (tsn, August 15, 1974, pp.
23-24).
To create a fundamental basis for her claim of ownership by
acquisitive prescription, private respondent mortgaged the
questioned property to the Rural Bank of Pulilan (Exh. "5-b") not
as a mere possessor but as an owner thereof. She also
registered both the mortgage and the "Sinumpaang Salaysay"
(tsn, December 18, 1974, p. 23). However, she never attempted
to obtain a certificate of title over the property. This omission
indicates, to say the least, that private respondent realizes her
lack of any lawful claim of ownership over the property for while
registration is not a mode of acquiring ownership, it is evidence of
such title over the particular property (Avila v. Tapucar, 201 SCRA
148 [1991]).
Private respondent's pretensions to acquisitive prescription may
not succeed even under Act No. 190, the Code of Civil
Procedure. Under Section 41 thereof, good faith and just title are
not required for purposes of acquisitive prescription; adverse
possession in either character ripens into ownership after the

lapse of ten years (Cruz vs. Court of Appeals, 93 SCRA 619

[1979]; Quilisado vs, Court of Appeals, 182 SCRA 401 [1990];
Ongsiaco vs. Dallo, 27 SCRA 161 [1969]; Miraflor vs. Court of
Appeals, 142 SCRA 18 [1986]). The just title required for
acquisitive prescription to set in is not "titulo verdadero y valido"
such title which by itself is sufficient to transfer ownership
without the necessity of letting the prescriptive period elapse, but
only
"titulo
colorado" or such title where, although there was a mode of
transferring ownership, still something is wrong because the
grantor is not the owner (Doliendo vs. Biannesa, 7 Phil. 232
[1906] cited in Solis vs. Court of Appeals, 176 SCRA 678 [1989]),
and incidentally, it may perhaps be mentioned that prescription
running even after the effectivity of the New Civil Code on August
30, 1950, continued to be governed by Section 41 of the Old Civil
Code (Solis vs. Court of Appeals, supra).
Under the present Civil Code, the prescriptive period required for
acquisition of immovable property is ten years if the possession is
in good faith, and thirty years if in bad faith (South City
Homes, Inc. vs. Republic, 185 SCRA 693 [1990]). Such open,
continuous, exclusive and notorious occupation of the disputed
property for thirty years must be conclusively established (San
Miguel Corporation vs. Court of Appeals, 185 SCRA 722 [1990]).
Reckoned from the time she executed the affidavit of adjudication
in 1961, eleven years after the New Civil Code had taken effect,
private respondent's possession of the contested lot is far too
short of the prescriptive period of thirty years considering that her
possession is in bad faith. The filing of the petition for recovery of
ownership and possession and quieting of title by petitioners on
April 27, 1973 was well below the acquisitive prescriptive period
for private respondent, which is thirty years under Article 1141 of
the present Civil Code. In this case, the statutory period of
prescription is deemed to have commenced when petitioners

were made aware of a claim adverse to them (Coronel vs.

Intermediate Appellate Court, 155 SCRA 270 [1987]), that is,
when the affidavit of adjudication was duly registered with the
Registry of Deeds which, at the earliest may be considered to be
in 1974, when private respondent was able to secure a tax
declaration in her name.
WHEREFORE, the decision of the Court of Appeals under review
is hereby SET ASIDE and the decision of the trial court, dated
September 7, 1975, REINSTATED.

The Facts
[G.R. No. 79688. February 1, 1996]

PLEASANTVILLE
DEVELOPMENT
CORPORATION, petitioner, vs. COURT
OF APPEALS, WILSON KEE, C.T.
TORRES ENTERPRISES, INC. and
ELDRED JARDINICO, respondents.
DECISION
PANGANIBAN, J.:

Is a lot buyer who constructs improvements on

the wrong property erroneously delivered by the
owners agent, a builder in good faith? This is the
main issue resolved in this petition for review on
certiorari to reverse the Decision of the Court of
Appeals in CA-G.R. SP No. 11040, promulgated
on August 20, 1987.
[1]

[2]

By resolution dated November 13, 1995, the

First Division of this Court resolved to transfer this
case (along with several others) to the Third
Division. After due deliberation and consultation,
the Court assigned the writing of this Decision to
the undersigned ponente.

The facts, as found by respondent Court, are

as follows:
Edith Robillo purchased from petitioner a parcel
of land designated as Lot 9, Phase II and located
at Taculing
Road,
Pleasantville
Subdivision, Bacolod City. In 1975, respondent
Eldred Jardinico bought the rights to the lot from
Robillo. At that time, Lot 9 was vacant.
Upon completing all payments, Jardinico
secured from the Register of Deeds of Bacolod
City on December 19, 1978 Transfer Certificate of
Title No. 106367 in his name. It was then that he
discovered that improvements had
been
introduced on Lot 9 by respondent Wilson Kee,
who had taken possession thereof.
It appears that on March 26, 1974, Kee bought
on installment Lot 8 of the same subdivision from
C.T. Torres Enterprises, Inc. (CTTEI), the exclusive
real estate agent of petitioner. Under the Contract
to Sell on Installment, Kee could possess the lot
even before the completion of all installment
payments. On January 20, 1975, Kee paid CTTEI
the relocation fee of P50.00 and another P50.00

on January 27, 1975, for the preparation of the lot

plan. These amounts were paid prior to Kees
taking actual possession of Lot 8.After the
preparation of the lot plan and a copy thereof given
to Kee, CTTEI through its employee, Zenaida
Octaviano, accompanied Kees wife, Donabelle
Kee, to inspect Lot 8. Unfortunately, the parcel of
land pointed by Octaviano was Lot 9. Thereafter,
Kee proceeded to construct his residence, a store,
an auto repair shop and other improvements on
the lot.

The MTCC held that the erroneous delivery

of Lot 9 to Kee was attributable to CTTEI. It further
ruled that petitioner and CTTEI could not
successfully invoke as a defense the failure of Kee
to give notice of his intention to begin construction
required under paragraph 22 of the Contract to Sell
on Installment and his having built a sari-sari store
without.the prior approval of petitioner required
under paragraph 26 of said contract, saying that
the purpose of these requirements was merely to
regulate the type of improvements to be
constructed on the lot .
[3]

After discovering that Lot 9 was occupied by

Kee, Jardinico confronted him. The parties tried to
reach an amicable settlement, but failed.
On January 30, 1981, Jardinicos lawyer wrote
Kee, demanding that the latter remove all
improvements and vacate Lot 9. When Kee
refused to vacate Lot 9, Jardinico filed with the
Municipal Trial Court in Cities, Branch 3, Bacolod
City (MTCC), a complaint for ejectment with
damages against Kee.
Kee, in turn, filed a third-party complaint
against petitioner and CTTEI.

However, the MTCC found that petitioner had

already rescinded its contract with Kee over Lot 8
for the latters failure to pay the installments due,
and that Kee had not contested the rescission. The
rescission was effected in 1979, before the
complaint was instituted. The MTCC concluded
that Kee no longer had any right over the lot
subject of the contract between him and
petitioner. Consequently, Kee must pay reasonable
rentals for the use of Lot 9, and, furthermore, he
cannot claim reimbursement for the improvements
he introduced on said lot.
The MTCC thus disposed:

IN VIEW OF ALL THE FOREGOING, judgment is

hereby rendered as follows:
1. Defendant Wilson Kee is ordered to vacate tithe
premises of Lot 9, covered by TCT No. 106367 and to
remove all structures and improvements he introduced
thereon;
2. Defendant Wilson Kee is ordered to pay to the
plaintiff rentals at the rate of P 15.00 a day computed
from the time this suit was filed on March 12, 1981 until
he actually vacates the premises.This amount shall bear
interests (sic) at the rate of 12 per cent (sic) per annum.
3. Third-Party Defendant CT. Torres Enterprises, Inc.
and Pleasantville Subdivision are ordered to pay the
plaintiff jointly and severally the sum of P3,000.00 as
attorneys fees and P700.00 as cost and litigation
expenses.
[4]

On appeal, the Regional Trial Court, Branch 48,

Bacolod City (RTC) ruled that petitioner and CTTEI
were not at fault or were not negligent, there being
no preponderant evidence to show that they
directly participated in the delivery of Lot 9 to Kee.
It found Kee a builder in bad faith. It further ruled
that even assuming arguendo that Kee was acting
in good faith, he was, nonetheless, guilty of
[5]

unlawfully usurping the possessory right of

Jardinico over Lot 9 from the time he was served
with notice to vacate said lot, and thus was liable
for rental.
The RTC thus disposed:
WHEREFORE, the decision appealed from is affirmed
with respect to the order against the defendant to vacate
the premises of Lot No. 9 covered by Transfer
Certificate of Title No. T-106367 of the land records of
Bacolod City; the removal of all structures and
improvements introduced thereon at his expense and the
payment to plaintiff (sic) the sum of Fifteen (P 15.00)
Pesos a day as reasonable rental to be computed from
January 30, 1981, the date of the demand, and not from
the date of the filing of the complaint, until he had
vacated (sic) the premises, with interest thereon at 12%
per annum. This Court further renders judgment against
the defendant to pay the plaintiff the sum of Three
Thousand (P3,000.00) Pesos as attorneys fees, plus
costs of litigation.
The third-party complaint against Third-Party
Defendants Pleasantville Development Corporation and
C.T. Torres Enterprises, Inc. is dismissed. The order
against Third-Party Defendants to pay attorneys fees to
plaintiff and costs of litigation is reversed.
[6]

Following the denial of his motion for

reconsideration on October 20, 1986, Kee
appealed directly to the Supreme Court, which
referred the matter to the Court of Appeals.
The appellate court ruled that Kee was a
builder in good faith, as he was unaware of the
mix-up when he began construction of the
improvements on Lot 8. It further ruled that the
erroneous delivery was due to the negligence of
CTTEI, and that such wrong delivery was likewise
imputable to its principal, petitioner herein. The
appellate court also ruled that the award of rentals
was without basis.
Thus, the Court of Appeals disposed:
WHEREFORE, the petition is GRANTED, the appealed
decision is REVERSED, and judgment is rendered as
follows:
1. Wilson Kee is declared a builder in good faith with
respect to the improvements he introduced
on Lot 9, and is entitled to the rights granted him
under Articles 448, 546 and 548 of the New Civil
Code.
2. Third-party defendants C.T. Torres Enterprises, Inc.
and Pleasantville Development Corporation are
solidarily liable under the following circumstances:

a. If Eldred Jardinico decides to appropriate the

improvements and, thereafter, remove these
structures, the third-party defendants shall
answer for all demolition expenses and the
value of the improvements thus destroyed or
rendered useless;
b. If Jardinico prefers that Kee buy the land, the
third-party defendants shall answer for the
amount representing the value of Lot 9 that
Kee should pay to Jardinico.
3. Third-party defendants C.T. Torres Enterprises, Inc.
and Pleasantville Development Corporation are
ordered to pay in solidum the amount of P3,000.00
to Jardinico as attorneys fees, as well as litigation
expenses.
4. The award of rentals to Jardinico is dispensed with.

Furthermore, the case is REMANDED to the court of

origin for the determination of the actual value of the
improvements and the property (Lot 9), as well as for
further proceedings in conformity with Article 448 of
the New Civil Code.
[7]

Petitioner then filed the instant petition against

Kee, Jardinico and CTTEI.
The Issues

The petition submitted the following grounds to

justify a review of the respondent Courts Decision,
as follows:
1. The Court of Appeals has decided the case in a way
probably not in accord with law or the the (sic)
applicable decisions of the Supreme Court on thirdparty complaints, by ordering third-party defendants to
pay the demolition expenses and/or price of the land;
2. The Court of Appeals has so far departed from the
accepted course of judicial proceedings, by granting to
private respondent-Kee the rights of a builder in good
faith in excess of what the law provides, thus enriching
private respondent Kee at the expense of the petitioner;
3. In the light of the subsequent events or circumstances
which changed the rights of the parties, it becomes
imperative to set aside or at least modify the judgment
of the Court of Appeals to harmonize with justice and
the facts;
4. Private respondent-Kee in accordance with the
findings of facts of the lower court is clearly a builder in
bad faith, having violated several provisions of the
contract to sell on installments;

5. The decision of the Court of Appeals, holding the

principal, Pleasantville Development Corporation
(liable) for the acts made by the agent in excess of its
authority is clearly in violation of the provision of the
law;
6. The award of attorneys fees is clearly without basis
and is equivalent to putting a premium in (sic) court
litigation.
From these grounds, the issues could be restated as follows:
(1) Was Kee a builder in good faith?
(2) What is the liability, if any, of petitioner and its
agent, C.T. Torres Enterprises, Inc.? and
(3) Is the award of attorneys fees proper?
The First Issue: Good Faith
Petitioner contends that the Court of Appeals
erred in reversing the RTCs ruling that Kee was a
builder in bad faith.
Petitioner fails to persuade this Court to
abandon the findings and conclusions of the Court
of Appeals that Kee was a builder in good faith. We

agree with the following observation of the Court of

Appeals:
The roots of the controversy can be traced directly to the
errors committed by CTTEI, when it pointed the wrong
property to Wilson Kee and his wife. It is highly
improbable that a purchaser of a lot would knowingly
and willingly build his residence on a lot owned by
another, deliberately exposing himself and his family to
the risk of being ejected from the land and losing all
improvements thereon, not to mention the social
humiliation that would follow.
Under the circumstances, Kee had acted in the manner
of a prudent man in ascertaining the identity of his
property. Lot 8 is covered by Transfer Certificate of
Title No. T-69561, while Lot 9 is identified in Transfer
Certificate of Title No. T-106367. Hence, under
the Torrens system of land registration, Kee is presumed
to have knowledge of the metes and bounds of the
property with which he is dealing. x x x
xxx xxx xxx

But as Kee is a layman not versed in the technical

description of his property, he had to find a way to
ascertain that what was described in TCT No. 69561
matched Lot 8. Thus, he went to the subdivision

developers agent and applied and paid for the relocation

of the lot, as well as for the production of a lot plan by
CTTEIs geodetic engineer. Upon Kees receipt of the
map, his wife went to the subdivision site accompanied
by CTTEIs employee, Octaviano, who authoritatively
declared that the land she was pointing to was
indeed Lot 8. Having full faith and confidence in the
reputation of CTTEI, and because of the companys
positive identification of the property, Kee saw no
reason to suspect that there had been a misdelivery. The
steps Kee had taken to protect his interests were
reasonable. There was no need for him to have acted exabundantia cautela, such as being present during the
geodetic engineers relocation survey or hiring an
independent geodetic engineer to countercheck for
errors, for the final delivery of subdivision lots to their
owners is part of the regular course of everyday
business of CTTEI. Because of CTTEIs blunder, what
Kee had hoped to forestall did in fact transpire. Kees
efforts all went to naught.
[8]

Good faith consists in the belief of the builder

that the land he is building on is his and his
ignorance of any defect or flaw in his title. And as
good faith is presumed, petitioner has the burden
of proving bad faith on the part of Kee.
[9]

[10]

At the time he built improvements on Lot 8,

Kee believed that said lot was what he bought from
petitioner. He was not aware that the lot delivered
to him was not Lot 8. Thus, Kees good faith.
Petitioner failed to prove otherwise.
To demonstrate Kees bad faith, petitioner
points to Kees violation of paragraphs 22 and 26 of
the Contract of Sale on Installment.
We disagree. Such violations have no bearing
whatsoever on whether Kee was a builder in good
faith, that is, on his state of mind at the time he
built the improvements on Lot9. These alleged
violations may give rise to petitioners cause of
action against Kee under the said contract
(contractual breach), but may not be bases to
negate the presumption that Kee was a builder in
good faith.
Petitioner also points out that, as found by the
trial court, the Contract of Sale on Installment
covering Lot 8 between it and Kee was rescinded
long before the present action was instituted. This
has no relevance on the liability of petitioner, as
such fact does not negate the negligence of its
agent in pointing out the wrong lot to Kee. Such
circumstance is relevant only as it gives Jardinico

a cause of action for unlawful detainer against

Kee.
Petitioner next contends that Kee cannot claim
that another lot was erroneously pointed out to him
because the latter agreed to the following provision
in the Contract of Sale on Installment, to wit:
13. The Vendee hereby declares that prior to the
execution of his contract he/she has personally
examined or inspected the property made subject-matter
hereof, as to its location, contours, as well as the natural
condition of the lots and from the date hereof whatever
consequential change therein made due to erosion, the
said Vendee shall bear the expenses of the necessary
fillings, when the same is so desired by him/her.
[11]

The subject matter of this provision of the

contract is the change of the location, contour and
condition of the lot due to erosion. It merely
provides that the vendee, having examined the
property prior to the execution of the contract,
agrees to shoulder the expenses resulting from
such change.
We do not agree with the interpretation of
petitioner that Kee contracted away his right to
recover damages resulting from petitioners

negligence. Such waiver would be contrary to

public policy and cannot be allowed. Rights may
be waived, unless the waiver is contrary to law,
public order, public policy, morals, or good
customs, or prejudicial to a third person with a right
recognized by law.

The rule is that the principal is responsible for

the acts of the agent, done within the scope of his
authority, and should bear the damage caused to
third persons. On the other hand, the agent who
exceeds his authority is personally liable for the
damage.

The Second Issue: Petitioners Liability

CTTEI was acting within its authority as the

sole real estate representative of petitioner when it
made the delivery to Kee. In acting within its scope
of authority, it was, however, negligent. It is this
negligence that is the basis of petitioners liability,
as principal of CTTEI, per Articles 1909 and 1910
of the Civil Code.

[12]

Kee filed a third-party complaint against

petitioner and CTTEI, which was dismissed by the
RTC after ruling that there was no evidence from
which fault or negligence on the part of petitioner
and CTTEI can be inferred. The Court of Appeals
disagreed and found CTTEI negligent for the
erroneous delivery of the lot by Octaviano, its
employee.
Petitioner does not dispute the fact that CTTEI
was its agent. But it contends that the erroneous
delivery of Lot 9 to Kee was an act which was
clearly outside the scope of its authority, and
consequently, CTTEI alone should be liable. It
asserts that while [CTTEI] was authorized to sell
the lot belonging to the herein petitioner, it was
never authorized to deliver the wrong lot to Kee.
[13]

Petitioners contention is without merit.

[14]

[15]

Pending resolution of the case before the Court

of Appeals, Jardinico and Kee on July 24,
1987 entered into a deed of sale, wherein the
former sold Lot 9 to Kee. Jardinico and Kee did not
inform the Court of Appeals of such deal.
The deed of sale contained the following
provision:
1. That Civil Case No. 3815 entitled Jardinico vs. Kee
which is now pending appeal with the Court of Appeals,
regardless of the outcome of the decision shall be
mutually disregarded and shall not be pursued by the

parties herein and shall be considered dismissed and

without effect whatsoever;
[16]

Kee asserts though that the terms and

conditions in said deed of sale are strictly for the
parties thereto and that (t)here is no waiver made
by either of the parties in said deed of whatever
favorable judgment or award the honorable
respondent Court of Appeals may make in their
favor against herein petitioner Pleasantville
Development
Corporation
and/or
private
respondent C.T. Torres Enterprises, Inc.

a. If Eldred Jardinico decides to appropriate the

improvements and, thereafter, remove these
structures, the third-party defendants shall
answer for all demolition expenses and the
value of the improvements thus destroyed or
rendered useless;
b. If Jardinico prefers that Kee buy the land, the
third-party defendants shall answer for the
amount representing the value of Lot 9 that
Kee should pay to Jardinico.
[18]

[17]

Obviously, the deed of sale can have no effect

on the liability of petitioner. As we have earlier
stated, petitioners liability is grounded on the
negligence of its agent. On the other hand, what
the deed of sale regulates are the reciprocal rights
of Kee and Jardinico; it stressed that they had
reached an agreement independent of the
outcome of the case.
Petitioner further assails the following holding
of the Court of Appeals:
2. Third-party defendants C.T. Torres Enterprises, Inc.
and Pleasantville Development Corporation are
solidarily liable under the following circumstances:

Petitioner contends that if the above holding

would be carried out, Kee would be unjustly
enriched at its expense. In other words, Kee would
be -able to own the lot, as buyer, without having to
pay anything on it, because the aforequoted
portion of respondent Courts Decision would
require petitioner and CTTEI jointly and solidarily
to answer or reimburse Kee there for.
We agree with petitioner.
Petitioners liability lies in the negligence of its
agent CTTEI. For such negligence, the petitioner
should be held liable for damages. Now, the extent
and/or amount of damages to be awarded is a
factual issue which should be determined after

evidence is adduced. However, there is no

showing that such evidence was actually
presented in the trial court; hence no damages
could now be awarded.
The rights of Kee and Jardinico vis-a-vis each
other, as builder in good faith and owner in good
faith, respectively, are regulated by law (i.e., Arts.
448, 546 and 548 of the Civil Code). It was error
for the Court of Appeals to make a slight
modification in the application of such law, on the
ground of equity. At any rate, as it stands now, Kee
and Jardinico have amicably settled through their
deed of sale their rights and obligations with
regards to Lot 9. Thus, we delete items 2 (a) and
(b) of the dispositive portion of the Court of
Appeals Decision [as reproduced above] holding
petitioner and CTTEI solidarily liable.
The Third Issue: Attorneys Fees
The MTCC awarded Jardinico attorneys fees
and costs in the amount of P3,000.00 and
P700.00, respectively, as prayed for in his
complaint. The RTC deleted the award, consistent
with its ruling that petitioner was without fault or
negligence. The Court of Appeals, however,

reinstated the award of attorneys fees after ruling

that petitioner was liable for its agents negligence.
The award of attorneys fees lies within the
discretion of the court and depends upon the
circumstances of each case. We shall not
interfere with the discretion of the Court of
Appeals. Jardinico was compelled to litigate for the
protection of his interests and for the recovery of
damages sustained as a result of the negligence of
petitioners agent.
[19]

[20]

In sum, we rule that Kee is a builder in good

faith. The disposition of the Court of Appeals that
Kee is entitled to the rights granted him under
Articles 448, 546 and 548 of the New Civil Code is
deleted, in view of the deed of sale entered into by
Kee and Jardinico, which deed now governs the
rights of Jardinico and Kee as to each other. There
is also no further need, as ruled by the appellate
Court, to remand the case to the court of origin for
determination of the actual value of the
improvements and the property (Lot 9), as well as
for further proceedings in conformity with Article
448 of the New Civil Code.

WHEREFORE, the petition is partially

GRANTED. The Decision of the Court of Appeals
is hereby MODIFIED as follows:
(1) Wilson Kee is declared a builder in good faith;
(2) Petitioner Pleasantville Development Corporation
and respondent C.T. Tones Enterprises, Inc. are
declared solidarily liable for damages due to
negligence; however, since the amount and/or
extent of such damages was not proven during
the trial, the same cannot now be quantified and
awarded;
(3) Petitioner Pleasantville Develpment Corporation
and respondent C.T. Torres Enterprises, Inc. are
ordered to pay in solidum the amount of
P3,000.00 to Jardinico as attorneys fees, as
well as litigation expenses; and
(4) The award of rentals to Jardinico is dispensed
with.

SO ORDERED.

G.R. No. 3088

February 6, 1907

EL
BANCO
ESPAOL-FILIPINO, plaintiff-appellant,
vs.
JAMES PETERSON, sheriff of the city of Manila, ET
AL., defendants-appellees.
Del-Pan,
Ortigas
&
Fisher
for
Hartigan, Marple, Rohde, & Gutierrez for appellees.

appellant.

TORRES, J.:
On the 24th of October, 1905, the Spanish-Filipino Bank, a
corporation, through its attorneys, Del-Pan, Ortigas and Fisher,
filed a complaint against the sheriff of the city of Manila and the
other defendant, Juan Garcia, praying that judgment be rendered
against the said sheriff, declaring that the execution levied upon
the property referred to in the complaint, to wit, wines, liquors,
canned goods, and other similar merchandise, was illegal, and
directing the defendants to return the said goods to the plaintiff
corporation, and in case that he had disposed of the same, to pay
the value thereof, amounting to P30,000, Philippine currency, and
further that it be declared that the said plaintiff corporation, under
the contract of pledge referred to in the complaint had the right to
apply the proceeds of the sale of the said goods to the payment
of the debt of P40,000, Philippine currency, for the security of
which the said merchandise was pledged, with preference over
the claim of the other defendant, Juan Garcia and that both
defendants be held jointly liable to the plaintiff for the sum of
P500, Philippine currency, as damages, and the said defendants
to pay the costs of the proceedings, and for such other and
further relief as the plaintiff might be entitled to under the law.
Plaintiff alleges in its complaint that under the contract entered
into on the 4th of March, 1905, by and between the SpanishFilipino Bank and Francisco Reyes, the former, loaned to the

latter the sum of P141,702, Philippine currency; that on the same

date Francisco Reyes was already indebted to the bank in the
sum of P84,415.38, Philippine currency, which, added to the
amount of the loan, made a total of P226,117.38, Philippine
currency, received by the said Reyes as a loan from the plaintiff
bank, the entire sum at an annual interest of 8 per cent; that to
secure the payment of these two sums and the interest thereon,
the debtor, Francisco Reyes, by a public instrument executed
before a notary on the aforesaid date mortgaged in favor of the
plaintiff bank several pieces of property belonging to him, and
pledged to the said bank part of his personal property, specifying
the proportion on which the said real and personal property thus
mortgaged and pledged in favor of the plaintiff corporation would
be respectively liable for the payment of the debt; that the
property pledged by the debtor to the bank included a stock or
merchandise, consisting of wines, liquors, canned goods, and
other similar articles valued at P90,591.75, Philippine currency,
then stored in the warehouses of the debtor, Reyes, No. 12 Plaza
Moraga, in the city of Manila, which said goods and merchandise
were liable for the payment of the said sum of P90,591.75,
Philippine currency; that in the aforesaid deed of pledge it was
agreed by and between the bank and the debtor, Reyes, that the
goods should be delivered to Ramon Garcia y Planas for safekeeping, the debtor having actually turned over to the said Garcia
y Planas the goods in question by delivering to him the keys of
the warehouse in which they were kept; that in a subsequent
contract entered into by and between the debtor, Reyes, and the
plaintiff bank on the 29th of September, 1905, the said contract
executed on the 4th of March was modified so as to provide that
the goods then (September 29) in possession the depositary
should only be liable for the sum of P40,000, Philippine currency,
the said contract of the 4th of March remaining in all other
respects in full force and effect, Luis M.a Sierra having been
subsequently appointed by agreement between the bank and the
debtor as depositary of the goods thus pledged in substitution for
the said Ramon Garcia y Planas.

On the 19th of October, 1905, in an action brought in the Court of

First Instance of the city of Manila by Juan Garcia y Planas
against Francisco Reyes and Ramon Agtarat, judgment was
rendered against the last-mentioned two for the sum of P15,000,
Philippine currency, to be paid by them severally or jointly, upon
which judgment execution was issued against the property of the
defendants, Reyes and Agtarap. On the aforesaid 19th day of
October, for the purpose of levying upon the property of the
defendants, the sheriff at the request of Garcia, the plaintiff in that
case, entered the warehouse where the goods pledged to the
plaintiff bank were stored under the custody of the depositary,
Sierra, and levied upon them as per list attached to the complaint
marked "Exhibit A." The sheriff seized the goods which had been
pledged to the bank, depriving the latter of the possession of the
same, to which said contract executed on the 4th of March, 1905.
Without the authority of the bank, Reyes could not dispose of the
said goods. The value of the goods seized by the sheriff was
P30,000, Philippine currency, the said sheriff, having refused, and
still refusing, to return to the same to the bank, notwithstanding
repeated demands made upon him to this effect, and it being
alleged in the complaint that unless prohibited by the court the
sheriff would proceed to sell the said goods at public auction and
apply the proceeds to the satisfaction of the judgment rendered in
favor of the Juan Garcia y Planas, while the other debtor Reyes
had not paid to the bank the P40,000, Philippine currency, to
secure the payment of which the goods mentioned in Exhibit A
had been pledged to the bank, that is, to secure the payment of a
sum in excess of the actual value of the goods in the hands of the
sheriff.

attached to the complaint for the purpose of satisfying the

judgment referred to therein; and also the allegations contained in
paragraph 13 of the complaint, with the exception that the sheriff
seized the property mentioned in Exhibit A under the execution
referred to therein; and finally defendants denied the allegation
contained in paragraph 15 of the complaint, with the exception of
the allegation that the value of the property seized is P30,000.
They accordingly asked that the action be dismissed and that it
be adjudged that the plaintiff had no interest whatever in the
property described in the complaint, and that the plaintiff be taxed
with the costs of these proceedings.

The defendant sheriff, James J. Peterson, and Juan Garcia, his

codefendant, through their attorneys, Hartigan, Marple, Rohde
and Gutierrez, answering the complaint, stated that they admitted
the allegations contained in paragraphs 1, 2, 3, 4, 5, 12, and 17 of
the complaint, but denied the allegations contained in paragraphs
6, 7, 8, 9, 10, 11, 14, 16, and 18. They further denied the
allegations contained in paragraph 12, with the exception that the
defendant sheriff levied upon the goods mentioned in Exhibit A

If so, the bank's claim had preference over the claim of a third
person not secured, as was the bank's, by a pledge, with
reference to the property pledged to the extent of its value, and
therefore such property could not have been legally levied upon
by the sheriff at the request of the defendant, Juan Garcia. (Arts.
1921, 1922, Civil Code.)

The testimony introduced by the parties having been received,

and the exhibits having been attached to the record, the court
below entered judgment on the 4th of January, 1906, dismissing
plaintiff's action and directing that the defendant recover from the
Spanish-Filipino Bank the costs of this action, for which execution
was duly issued. To this judgment counsel for plaintiff excepted
and announced his intention of prosecuting a bill of exceptions,
and further made a motion for a new trial on the ground that the
judgment of the court below was contrary to law and that the
findings of fact were plainly and manifestly contrary to the weight
of the evidence.
The decision of this case depends mainly upon the question as to
whether the contract of pledge entered into by and between the
Spanish-Filipino Bank and Francisco Reyes to secure a loan
made by the former to the latter was valid, all the requisites
prescribed by the Civil Code having been complied with.

The contract in question complies with all the requisites provided

in article 1857 of the Civil Code, such as that the property was
pledged to secure a debt, the date of the execution, the terms of
the pledge, and the property pledged, all of which appears in a
public document, and the property pledged was placed in the
hands of a third person by common consent of the debtor and
creditor, under the supervision of an agent of the bank. (Arts.
1863, 1865, 1866, 1869, 1871, Civil Code.) The defect alleged to
exist in the said contract is that the debtor, Reyes, continued in
possession of the property pledged; that he never parted with the
said property, and that neither the creditor nor the depositary
appointed by common consent of the parties were ever in
possession of the property pledged, and for this reason, and upon
the further ground that the contract was fraudulent, the court
below dismissed the complaint with the costs against the plaintiff.

purpose of giving this possession greater effect, the pledgee

appointed a person to examine daily the property in the
warehouse where the same was kept.

In the motion for a new trial it was alleged by the plaintiff that the
judgment of the court below was contrary to law, and that the
findings of fact contained therein were plainly and manifestly
against the weight of the evidence. If plaintiffs contention is
correct, then the judgment of the court below should be reversed.

The contract in question was, therefore, a perfect contract of

pledge under articles 1857 and 1863 of the Civil Code, it having
been conclusively shown that the pledgee took charge and
possession of the goods pledged through a depository and a
special agent appointed by it, each of whom had a duplicate key
to the warehouse wherein the said goods were stored, and that
the pledgee, itself, received and collected the proceeds of the
goods as they were sold.

From the evidence introduced at the trial, both oral and

documentary, it appears that a third person, appointed by the
common consent of the debtor and creditor, was in possession of
the goods pledged in favor of the bank under the direct
supervision of an agent of the bank expressly appointed for this
purpose, and it has not been shown that the said Reyes
continued in the possession of the goods after they had been
pledged to the plaintiff bank.
Exhibit C and the testimony of Francisco Reyes, Luis M.a Sierra,
and Mariano Rodriguez corroborate the existence and
authenticity of the contract of pledge recorded in a public
instrument and conclusively and satisfactorily show that the
debtor, after the pledge of the property, parted with the
possession of the same, and that it was delivered to a third
person designated by common consent of the parties. For the

The witness Matias Garcia also testified as to the status of these

goods, and informed Juan Garcia of such status before the same
were levied upon.
The sheriff's testimony supports the allegation that the depositary,
Sierra, was present at the place where the goods were kept, as
well as the representative of the bank, Rodriguez, when he, the
sheriff, went there for the purpose of levying upon the said
property. He further testified that Rodriguez, the representative of
the bank, then protested and notified him that the property in
question was pledged to the Spanish-Filipino Bank.

The fact that the said goods continued in the warehouse which
was formerly rented by the pledgor, Reyes, does not affect the
validity and legality of the pledge, it having been demonstrated
that after the pledge had been agreed upon, and after the
depository appointed with the common consent of the parties had
taken possession of the said property, the owner, the pledgor,
could no longer dispose of the same, the pledgee being the only
one authorized to do so through the depositary and special agent
who represented it, the symbolical transfer of the goods by
means of the delivery of the keys to the warehouse where the
goods were stored being sufficient to show that the depositary
appointed by the common consent of the parties was legally

placed in possession of the goods. (Articles 438, 1463, Civil

Code.)
The fact that the debtor, Reyes, procured purchasers and made
arrangements for the sale of the goods pledged and that the bills
for the goods thus sold were signed by him does not affect the
validity of the contract, for the pledgor, Reyes, continued to be the
owner of the goods, (art. 1869, Civil Code), he being the one
principally interested in the sale of the property on the best
possible terms.
As to the reservation stipulated in paragraph 13 of the contract
executed on the 4th of March, 1905, it could not affect the
contract in question for the reason that reservation referred to the
rent from the property mortgaged, to the bank and the dividends
from the shares of stock also pledged to the bank, and not the
merchandise so pledged, and such reservation could not have
rendered the contract of pledge null.
If the case is to be decided in accordance with the facts alleged
and established, the defendant not having introduced any
evidence to show that the said contract of pledge was fraudulent
as to other creditors, there was no legal ground upon which the
court below could have held that the contract evidenced by the
instrument in question was entered into to defraud other creditors
of the pledgor.
For the reason hereinbefore set out, and the judgment of the
court below being contrary to the evidence, the said judgment is
hereby reversed, and it is hereby adjudged that the plaintiff
corporation, under and by virtue of the contract of pledge in
question, had a preferential right over that of the defendant, Juan
Garcia, to the goods pledged or the value thereof, the value to be
applied to the payment of the debt of P40,000, Philippine
currency, for the security of which the said property was pledged,
and the defendants are accordingly hereby ordered to return to
the plaintiff corporation the property improperly levied upon, or to
pay its value, amounting to P30,000, Philippine currency, without

special provision as to costs. After the expiration of twenty days

let judgment be entered in accordance herewith, and ten days
thereafter the case be remanded to the court below for execution.
So ordered.

the determination of the correctness of the decision of the court

concerning that part of the controversy submitted to its decision.

G.R. No. L-9989

March 13, 1918

EDUARDO
CUAYCONG,
ET
AL., plaintiffs-appellees,
vs.
RAMONA BENEDICTO, ET AL., defendants-appellants.
Ruperto Montinola and Aurelio
No appearance for appellees.

Montinola

for

appellants.

FISHER, J.:
The issues in this case relate to the right of plaintiffs to make use
of two roads existing on the Hacienda Toreno, a tract of land in
the municipality of Victorias, Negros Occidental, the property of
the defendants, Blasa Benedicto and Ramona Benedicto. One of
these roads is referred to in the proceedings as the NancaVictorias road and the other as the Dacuman Toreno road. The
Court of First Instance held that those of the plaintiffs who
claimed to be entitled to make use of the Dacuman Toreno
road had failed to establish the asserted right, and dismissed the
action as to them. From this decision they appealed to this court
but, their brief not having been filed within the time prescribed by
the rules, their appeal was dismissed, on motion of defendants,
by resolution dated February 14, 1916. Consequently, the issues
presented on this appeal are limited to those which relate to the
rights of the parties with respect to the Nanca-Victorias road, and

The allegations in the complaint with respect to the NancaVictorias road are that the appellees, Eduardo Cuaycong, Lino
Cuaycong, and Eulalio Dolor, are the owners of a group of
haciendas situated between the southern boundary of the
Hacienda Toreno and the barrio of Nanca, of the municipality of
Seravia, and that the appellees Silverio Ginoo, Gervasio Ascalon,
and Juan Ledesma, are the lessees of part of said haciendas;
that more than twenty years the appellees and their predecessors
in interest have made use of the Nanca-Victorias road, which
crosses the Hacienda Toreno, openly, publicly, and continiously,
with the knowledge of the owners of the said hacienda, for the
purpose of conveying the products of their haciendas to the town
of Victorias and to the landing place there situated, and for the
purpose of transporting supplies from those points to their
haciendas, making use of the said road by means of carts,
carabaos, and other usual means of transportation; that there is
no outlet to a public road from the hacienda occupied by these
plaintiffs, the only road and way by which the products of the
plaintiffs' property can be taken to the town of Victorias and to the
landing place there being across the Hacienda Toreno by the
road marked on the plan attached to the complaint; that on the
fifteenth day of November, 1912, the defendants closed the road
in question at the point at which it crosses the Hacienda Toreno,
and refused to permit plaintiffs to continue using it; that plaintiffs
were about to commence to grind their crop of sugar cane, and
that, if prevented from transporting their sugar across the
Hacienda Toreno to their point of embarkation, would suffer
damages difficult to estimate. Upon these averments of fact the
plaintiffs prayed for a judgment that they are entitled to use the
road in question as they have been using it in the past, and that a
perpetual injunction be issued against plaintiffs restraining them
from impending such use. Upon the filing of the complaint,
plaintiffs moved the court to issue a preliminary injunction
restraining defendants from interfering with the use of the road

during the pendency of the suit, which motion was granted by the
court.
Defendants in their answer put in issue all the special averments
of the complaint, as above set forth, and by way of counterclaim
and special defense, averred that the road crossing the Hacienda
Toreno, over which plaintiffs claim the right of passage, is the
private property of defendants; and, further, that they have not
refused plaintiffs permission to pass over this road but have
required them to pay toll for the privilege of doing so. Defendants
also claimed damages for the use of the road by plaintiffs during
the pendency of the suit, alleging that the preliminary injunction
had been improvidently issued upon false statements contained
in the verified complaint filed by plaintiffs.
The case was tried in July, 1913. The court on December 8,
1913, rendered judgment, dismissing the complaint with respect
to the plaintiffs Felix Suarez, Probo Jereza, Enrique Azcona, and
Melecio Pido, these being the plaintiffs who claimed the right to
use the Dacuman Toreno road. With respect to the NancaVictorias road, the court held that it was a public highway over
which the public had acquired a right of use by immemorial
prescription, and ordered the issuance of a perpetual injunction
against plaintiffs, restraining them from interfering in any manner
with the use of the said road.
The conclusion of the court with respect to the facts affecting the
Nanca-Victorias road are as follows:
Turning to a consideration of the evidence relative to the
Nanca-Victorias road we find incontestable proof that it
has been in existence for at least forty years. That the
hacenderos located in the southwestern section of
Victorias and the public generally passed over it freely
and that it was used for all purposes of transportation of
farm produce, animals, etc. and by pedestrians as well as
carromatas and other conveyances without break or
interruption until two or three years ago when the

defendants announced that the road was private and that

those who wished to pass over it with sugar carts would
be obliged to pay a toll of ten centavos all other
vehicles, it appears, were permitted to pass free charge.
This arrangement seems to have existed during the years
of 1911 and 1912 and part of 1913, the money being
collected apparently from some hacenderos and not from
others. There is some reason to believe from the
evidence presented by defendants themselves that the
practice of making these payments to hacienda 'Toreno'
originated in an attempt to raise a fund for the repair of
the road. There is no evidence that any other hacenderos
between Nanca and Victorias or any other person made
any attempt to close the road or to collect toll. On the
contrary the road appears to have been repaired by the
hacenderos when it needed repairing and everyone used
it on equal terms until the defendants in 1910 or 1911
interposed the objection that the road in dispute was
private. This we think is a fair deduction from the
evidence and although it is asserted that toll was
collected at an earlier date by the late Leon Montinola,
brother of the defendant Ruperto Montinola, there is no
tangible evidence that this was so and that toll has been
paid only during the years of 1911, 1912, and part of
1913.
The question presented by the assignment of error are in effect:
(a) Is the Nanca-Victorias road at the point at which it traverses
the Hacienda Toreno a public highway or not?
(b) If it be held that the road in question is not a public highway,
have plaintiffs proven their acquisition of an easement of way
over the Hacienda Toreno at the point traversed by the road in
question?
The trial judge, in holding that the road in question is public,
bases in conclusion upon the fact, which he deems to have been

proven, that the road has been in existence "from time

immemorial," and had been "continiously used as a public road . .
. and open to public as such for thirty or forty years . . . until . . .
the defendants undertook to claim it as private and to collect toll
for the passage of carts." (Bill of Exceptions, p. 56.) There is no
doubt that for the past thirty or forty years a road has existed
between the former site of the town of Victorias and the barrio of
Nanca, of the municipality of Seravia, and that this road crosses
defendants' hacienda. It is also true that during this period the
plaintiffs and their predecessors in the ownership of the hacienda
now held by them have made use of this road for the purpose of
going and coming from their haciendas to the town of Victorias;
but the question is whether this use was limited to the plaintiffs,
and their tenants and employees, or whether it was, as held by
the lower court, a use enjoyed by the public in general. Plaintiffs
produced only two witnesses, Segundo de Leon (stet. notes, pp.
21-22) and Eduardo Cuaycong, (stet. notes, pp. 27-33) to testify
as regards the use of the Nanca-Victorias road. Several other
witnesses testified on behalf of plaintiffs, but their testimony
relates to the Dacuman Toreno road, which is not involved in
this appeal. We have carefully read the testimony of the
witnesses Leon and Cuaycong, given upon their direct and cross
examination, but we have been unable to find that either of them
has testified that the road in question was ever used by the public
in general. These witnesses testified with regard to the use of the
road by the present and former owners and occupants of the
estates of Bacayan, Esperanza, Alcaigan, Pusot, and Dolores for
the transportation of the products of these estates to the town of
Victorias, and of supplies and agricultural implements from
Victorias to the haciendas, but neither of them testified expressly
that any other use had been made of said road. Nevertheless, it
may be reasonably inferred from the testimony of these witnesses
that all persons having occasion to travel between Victorias and
the haciendas of Bacayan, Esperanza, Alacaigan, Pusot, and
Dolores, whether or not they were owners, tenants, or employees
of said estates, made use of the road now in dispute, crossing the
Hacienda Toreno, and to this limited extent it may be said that the

public made use of the road, but there is nothing in the evidence
to indicate that the so called public use extended beyond this.
Apart from the fact that there is no direct evidence to support the
finding of the court concerning the general public use of the road
in dispute, the record contains data strongly tending to show that
when the complaint was filed plaintiffs did not contend that the
road was a public highway, but merely contended that they had
acquired by prescription an easement of way across the
Hacienda Toreno. For example, the action is entitled an "action
concerning a right of away." (Bill of Exceptions, pp. 64 and 65.) It
is not averred in the complaint that the road in question was used
by the public. On the contrary, it is averred that it was used by the
plaintiffs and their predecessors. The averment in paragraph 8 of
the complaint that the plaintiffs have no other "outlet to a public
road" than that which they have been accustomed to used by
going across the defendants' hacienda for the purpose of going to
the town of Victorias also shows that when they commenced this
action they had in mind the provisions of articles 564, et seq. of
the Civil Code, which relate to the method of establishing the
compulsory easement of way. The owners of an existing
easement, as well as those whose properties are adjacent with a
public road, have no occasion to invoke these provisions of the
Code, which relate to the creation of new rights, and not the
enforcement of rights already in existence.
It is true in the opening statement made to the court, counsel for
plaintiffs, who was not the same attorney by whom the complaint
was signed, stated that plaintiffs contend that the road in question
is public, but as no evidence was introduced tending to establish
this contention concerning the Nanca Victorias road, counsel
for defendants had no occasion to object upon the ground that
such testimony was not relevant to the averments of the
complaint. No evidence was taken to indicate that at any time
since the road in question has been in existence any part of the
expense of its upkeep has been defrayed by the general
government, the province, or the municipality. The trial judge said
upon this subject:

It is true that whatever repairs were made on the road

were made irregularly. The municipality of Victorias had
no funds to devote to the construction and repair of roads,
and the upkeep of the road depending entirely therefore
on the initiative of the persons who used it, was attended
to only at such times as repairs were absolutely
necessary. (Bill of Exceptions, p. 49.)
The court also held that it appears from the government grant
issued in 1885 to the original owner of the hacienda adjacent to
the Hacienda Toreno on its western boundary, that the NancaVictorias road at that time separated that estate from the
Jalbuena Hacienda, and that these facts constitute
"circumstantial evidence that the road was in existence in 1885."
We have examined the document to which the court refers, and
we agree that the road in question existed in 1885; but we do not
believe that the document in question proves that the road
was public highway.
Another circumstance established by the evidence, and which is
some importance in the determination of this issue, is that
although the defendants closed the Nanca-Victorias road in the
month of February, 1911, and since that time have collected toll
from persons passing over it with carts loaded with sugar,
including those belonging to several of the plaintiffs, nothing was
done by them to prevent the continuation of this restriction until
December, 1912, when this action was commenced. It is natural
to assume that if plaintiffs had considered that the road in
question was public, they would have protested immediately
against the action of the defendants, and would have either
commenced a civil action, as they subsequently did, or would
have brought about a prosecution under section 16 of Act No.
1511.
Upon the evidence taken and admissions contained in the
pleadings and those made during the course of the trial we
consider that the following findings are warranted:

1. The town of Victorias has always been the shipping point of the
products of the Hacienda Toreno, and of the haciendas of
appellees, as well as the place from which supplies were brought
to those properties.
2. For thirty or forty years before the commencement of the suit a
wagon road, herein called the Nanca-Victorias road, has been in
existence, connecting the haciendas of appellees with the town of
Victorias, and this road traverses the property of defendants.
Since the removal of the town of Victorias to a new site the
Nanca-Victorias road has been used by appellees in travelling
between their properties and the provincial road which crosses
the Hacienda Toreno from east to west.
3. No public funds have at any time been expended on the
construction or upkeep of the Nanca-Victorias road, but from time
to time work has been done on it by the laborers employed by the
present and former owners of the Hacienda Toreno and the
haciendas owned by the appellees and their predecessors in title.
4. The Nanca-Victorias wagon road, including that part of it which
crosses the Hacienda Toreno, has for thirty-five or forty years
been used by the appellees and their predecessors in title for the
transportation, by the usual means, of the products of their
estates to their shipping points in or near the town of Victorias,
and the transportation to their estates of all supplies required by
them, and has been used by all persons having occasion to travel
to and from all or any of the estates now owned by the appellees.
5. The use of the Nanca-Victorias road in the manner and by the
person above mentioned was permitted without objection by the
owners of the Hacienda Toreno until the year 1911, when they
closed it, and began charging a toll of 5 centavos for each cart
which passed over the road, including carts belonging to the
appellants, until restrained from continuing to do so by the
preliminary injunction granted in this case.

6. The Nanca-Victorias road constitutes the only outlet from the

estates of appellants to the nearest public road which is the
provincial road which crosses the Hacienda Toreno from east to
west.
Upon these facts the questions of law to be decided are:
(a) Is the Nanca-Victorias road a public highway?
(b) If the Nanca-Victoria road, or that part of it which crosses the
Hacienda Toreno, is not a public highway, is it subject to a private
easement of way in favor of the appellees?
The defendants are the owners of the Hacienda Toreno under a
Torrens title issued in accordance with the Land Registration Act,
conferring to them its absolute ownership, subject only to the
limitations of paragraph four of section 39 of said Act. It is
admitted that there is no annotation on the certificate of title
regarding the road here in question, either as a "public road" or
as a "private way established by law," and, therefore, the
questions presented by this appeal are to be determined
precisely as they would be had the Hacienda Toreno not been
brought under the operation of the Land Registration Act. The
plaintiffs being the owners of the property in question, the
presumption of law is that it is free from any lien or encumbrance
whatever, and the burden therefore rests upon plaintiffs to
establish the contrary. As this court said in case of Fabie vs.
Lichauco and the children of Francisco L. Roxas (11 Phil. Rep.,
14):
It is settled of law that a property is assumed to be free
from all encumbrance unless the contrary is proved.
There is admittedly no evidence to show that the land occupied
by the road here in question was any time conveyed to the
general government or any of its political subdivisions by the
present or any of the former owners of the Hacienda Toreno.

There is no evidence, even remotely, tending to show that the

road existed prior to the time when the property now known as
the Hacienda Toreno passed from the State into private
ownership. The record fails to disclose any evidence whatever
tending to show that the Government has at any time asserted
any right or title in or to the land occupied by the road, or that it
has incurred any expense whatever in its upkeep or construction.
The Civil Code defines as public roads those which are
constructed by the State (art. 339), and as provincial and town
roads those "the expense of which is borne by such towns or
provinces." (Civil Code, art. 344.) While it is not contended that
this definition is exclusive, it does show that during the Spanish
regime, under normal conditions, roads which were public were
maintained at the public expense, and that the fact that at no time
was any expense incurred by the Government with respect to the
road here in question tends strongly to support the contention of
the defendants that it is private way.
During the Spanish regime the law required each able to bodied
citizen not within one of the exempted classes to work a certain
number of days in each year, his labor to be devoted to "services
of general utility" to the municipality of his residence. (Royal
Decree of July 11, 1883, art. 5.) Under this Decree and the
Regulations for its enforcement (Berriz, vol. 11, 258) the greater
part of the work on the public road of the Islands was
accomplished. Had the road here in question been a public way, it
is reasonable to assume that the polistas of the town of Victorias
would have been employed in maintaining it. It is most significant
that no mention is made in the testimony of the plaintiffs'
witnesses of any work of this character having been done on the
road at any time, particularly in view of the fact that their attention
was drawn to this point. (Stet. note, pp. 8, 10, 11, 12, 13 and 14.)
The evidence shows that the repairs were made by the owners of
the estates benefited by the road, and by their laborers, as a pure
voluntary act for their own convenience and interest. There being
no evidence of a direct grant to the government of the land
occupied by the road in question or that any Government funds or

labor were expended upon it, the question presents itself whether
the use to which the road has been put was such as to justify the
conclusion of the lower court that it has become public property.
There being no evidence that the original use of the road by
plaintiffs' predecessors was based upon any grant of the fee to
the road or of an easement of way, or that it began under the
assertion of a right on their part, the presumption must be that the
origin of the use was the mere tolerance or license of the owners
of the estates affected.
This being so, has that merely permissive use been converted
into a title vested in the public at large, or in the plaintiffs by
reason of their ownership of the land beneficially affected by the
use?
Had it been shown that the road had been maintained at the
public expense, with the acquiescence of the owners of the
estates crossed by it, this would indicate such adverse
possession by the government as in course of time would ripen
into title or warrant the presumption of a grant or of a dedication.
But in this case there is no such evidence, and the claims of
plaintiffs, whether regarded as members of the public asserting a
right to use the road as such, or as persons claiming a private
easement of way over the land of another must be regarded as
resting upon the mere fact of user.
If the owner of a tract of land, to accommodate his neighbors or
the public in general, permits them to cross his property, it is
reasonable to suppose that it is not his intention, in so doing, to
divest himself of the ownership of the land so used, or to
establish an easement upon it and that the persons to whom such
permission, tacit or express, is granted, do not regard their
privilege of use as being based upon an essentially revocable
license. If the use continues for a long period of time, no change
being made in the relations of the parties by any express or
implied agreement, does the owner of the property affected lose
his right of revocation? Or, putting the same question in another

form, does the mere permissive use ripen into title by

prescription?
It is a fundamental principle of the law in this jurisdiction
concerning the possession of real property that such possession
is not affected by acts of a possessory character which are
"merely tolerated" by the possessor, or which are due to his
license (Civil Code, arts. 444 and 1942). This principle is
applicable not only with respect to the prescription of the
dominium as a whole, but to the prescription of right in rem. In the
case of Cortes vs. Palanca Yu Tibo (2 Phil. Rep., 24, 38), the
Court said:
The provision of article 1942 of the Civil Code to the effect
that acts which are merely tolerated produce no effect
with respect to possession is applicable as much to the
prescription of real rights as to the prescription of the fee,
it being a glaring and self-evident error to affirm the
contrary, as does the appellant in his motion papers.
Possession is the fundamental basis of the prescription.
Without it no kind of prescription is possible, not even the
extraordinary. Consequently, if acts of mere tolerance
produce no effect with respect to possession, as that
article provides, in conformity with article 444 of the same
Code, it is evident that they can produce no effect with
respect to prescription, whether ordinary or extraordinary.
This is true whether the prescriptive acquisition be of a
fee or of real rights, for the same reason holds in one and
the other case; that is, that there has been no true
possession in the legal sense of the word. (See also
Ayala de Roxas vs. Maglonso, 8 Phil Rep., 745;
Municipality of Nueva Caceres vs. Director of Lands and
Roman Catholic Bishop of Nueva Caceres, 24 Phil. Rep.,
485.)
Possession, under the Civil Code, to constitute the foundation of
a prescriptive right, must be possession under claim of title (en
concepto de dueno), or use the common law equivalent of the

term, it must be adverse. Acts of a possessory character

performed by one who holds by mere tolerance of the owner are
clearly not en concepto de dueo, and such possessory acts, no
matter how long so continued, do not start the running of the
period of prescription.
A similar question was presented in the case of the Roman
Catholic Archbishop of Manila vs. Roxas (22 Phil. Rep., 450), in
which case it appeared that Roxas, the owner of the Hacienda de
San Pedro Macati, claimed a right of way across the property of
the church to Calle Tejeron, a public street of the town of San
Pedro Macati. The proof showed that the road in question had
been used by the tenants of the Hacienda de San Pedro
Macatifor the passage of carts in coming and leaving the
hacienda "from time immemorial," and further that the road had
been used for time out of mind, not only by the tenants of the
hacienda but by many other people in going and coming from a
church half-way between the boundary line of the hacienda and
Calle Tejeron. The court held that the facts did not give rise to a
prescriptive right of easement in favor of the owner of the
hacienda, upon the ground that such use "is to be regarded as
permissive and under an implied license, and not adverse. Such
a use is not inconsistent with the only use which the proprietor
thought fit to make of the land, and until the appellee thinks
proper to inclose it, such use is not adverse and will not preclude
it from enclosing the land when other views of its interest render it
proper to do so. And though an adjacent proprietor may make
such use of the open land more frequently than another, yet the
same rule will apply unless there be some decisive act indicating
a separate and exclusive use under a claim of right. A different
doctrine would have a tendency to destroy all neighborhood
accommodations in the way of travel; for if it were once
understood that a man, by allowing his neighbor to pass through
his farm without objection over the pass-way which he used
himself, would thereby, after the lapse of time, confer a right on
such neighbor to require the pass-way to be kept open for his
benefit and enjoyment, a prohibition against all such travel would
immediately ensue."

The decisions of the supreme court of Louisiana, a State whose

jurisdiction is based, as is our own, upon the Roman Law, and
whose Civil Code is taken, as is our own,. very largely from the
Code of Napoleon, are particularly persuasive in matters of this
character. In the case of Torres vs. Fargoust (37 La. Ann., 497),
cited by appellants in their brief, in which the issues were very
similar to those of the present case, the court held that
The mere fact that for thirty or forty years the public was
permitted to pass over this ground would not of itself
constitute the place a locus publicus . . . dedication must
be shown by evidence so conclusive as to exclude all
idea of private ownership; . . . such dedication cannot be
inferred from ere user alone; . . . no one is presumed to
give away his property. The burden is on him who avers a
divestiture of ownership to prove it clearly.
We are, therefore, of the opinion, and so hold, that upon the facts
established by the evidence it does not appear that the road in
question is a public road or way. We are also of the opinion that
plaintiffs have failed to show that they have acquired by
prescription a private right of passage over the lands of
defendants. The supreme court of Spain has decided that under
the law in force before the enactment of the Civil Code, the
easement of way was discontinous, and that while such an
easement might be acquired by prescription, it must be used in
good faith, in the belief of the existence of the right, and such
user must have been continuous from time immemorial.
(Judgment of December 15, 1882.) In the appealed decision the
court below says that the plaintiffs and their predecessors made
use of the road in question "from time immemorial," but there is
no evidence whatever in the record to sup[port this finding,
although it is true that the evidence shows the existence of the
road and its use by the plaintiffs and their predecessors for thirtyfive or forty years. Speaking of the evidence required under the
present Code of Civil Procedure to show immemorial use of an
easement, this court said in the case of Ayal de Roxas vs. Case
(8 Phil. Rep., 197, 198):

Third Partida in title 31, law 15 . . . says that discontinues

servitudes . . . must be proved by usage or a term so long
that men can not remember its commencement. . . . In
many judgments the supreme court of Spain has refused
to accept proof of any definite number of years as a
satisfaction of this requirement of the law. . . . We are of
the opinion that in order to establish a right of prescription
[title of prescription based upon use from time
immemorial] something more required than memory of
living witnesses. Whether this something should be the
declaration of persons long dead, repeated by those who
testify, as exacted by the Spanish law, or should be the
common reputation of ownership recognized by the Code
of Procedure, it is unnecessary for us to decide. On either
theory the appellant has failed in his proof . . . .
The same thing may be said in this case. Witnesses have
testified that they have known the road for a certain period of
years, beginning at a time prior to the enactment of the Civil
Code, but no evidence has been made to prove immemorial use
by either of the means of proof mentioned in this decision cited,
nor is immemorial user averred in the complaint as the basis of
the right. It is evident, therefore, that no vested right by user from
time immemorial had been acquired by plaintiffs at the time the
Civil Code took effect. Under that Code (art 539) no
discontinuous easement could be acquired by prescription in any
event. Assuming, without deciding, that this rule has been
changed by the provisions of the present Code of Civil Procedure
relating to prescription, and that since its enactment
discontinuous easement may be required by prescription, it is
clear that this would not avail plaintiffs. The Code of Civil
Procedure went into effect on October 1, 1901. The term of
prescription for the acquisition of rights in real estate is fixed by
the Code (sec. 41) at ten years. The evidence shows that in
February, 1911, before the expiration of the term of ten years
since the time the Code of Civil Procedure took effect, the
defendants interrupted the use of the road by the plaintiffs by
constructing and maintaining a toll gate on it and collecting toll

from persons making use of it with carts and continued to do so

until they were enjoined by the granting of the preliminary
injunction by the trial court in December, 1912. Our conclusion is,
therefore, that the plaintiffs have not acquired by prescription a
right to an easement of way over the defendant's property; that
their use of the Nanca-Victorias road across the Hacienda Toreno
was due merely to the tacit license and tolerance of the
defendants and their predecessors in title; that license was
essentially revokable; and that, therefore, the defendants were
within their rights when they closed the road in 1911.
While in the allegations from the plaintiffs' complaint it might be
inferred that it was their purpose to seek to impose upon the
defendants the easement to which arts. 564 et seq. of the Civil
Code relate, that purpose was evidently abandoned, and the case
was tried upon a wholly different theory. Proof was offered to
show that the right of passage across defendants' land is
necessary to enable plaintiffs to get their products to market, but
there was no offer on their part to pay defendants the indemnity
required by section 564.
For the reasons stated the judgment of the court below is
reversed, the injunction issued against defendants is allowed on
this appeal. So ordered.

AQUlNO, J.:

t.hqw

Peregrina Astudillo appealed from the "resolution" dated April 18,

1967 of the Court of First Instance of Rizal, Quezon City Branch
V, granting the motion for summary judgment filed by Ramon P.
Mitra and dismissing her petition for certiorari and mandamus
(Civil Case No. Q-8741).
According to the pleadings of respondents Mitra and the People's
Homesite and Housing Corporation (PHHC) *, Mitra on December 28,
1957 applied, in behalf of his minor son, Ramon Mitra Ocampo, for the purchase of Lot 16,
Block E-155 of the East Avenue Subdivision of the PHHC in Piahan, Quezon City.

G.R. No. L-28066 September 22, 1976

PEREGRINA
ASTUDILLO, petitioner-appellant,
vs.
THE BOARD OF DIRECTORS OF PEOPLE'S HOMESITE AND
HOUSING CORPORATION, RAMON P. MITRA, SALUD O.
MITRA,
and
REGISTER
OF
DEEDS,
QUEZON
CITY, respondents-appellees.
Jose Villa Agustin for petitioner-appellant.
San Juan, Africa, Gonzales & San Agustin for appellees Mitras.
Manuel L. Lazaro & Leonardo A. Reyes, Gov't. Corp. Counsel's
Office for appellee Board of Director of the PHHC.

His application was approved on January 3, 1958. He made a

downpayment of P840, an amount equivalent to ten percent of
the price of the lot. On September 9, 1961 the PHHC and Mitra
executed a contract of conditional sale. After Mitra had paid in full
the price, which totalled more than nine thousand pesos, a final
deed of sale was executed in his favor on February 18, 1965.
Transfer Certificate of Title No. 89875 was issued to him on
March 1, 1965.
The lot in question is acqually in the possession of Peregrina
Astudillo. She constructed thereon a residential house (a shanty,
according to Mitra). She admits that she has been squatting on
the said lot "uninterruptedly since 1957 up to the present" (p. 52,
Record). She filed with the administrative investigating committee
of the PHHC a request dated February 24, 1963, praying for the
cancellation of the award of Lot 16 to Congressman Mitra and
asking the committee to recommend that it be re-awarded to her.
No action was taken on that request.
On May 3, 1965 Peregrina filed in the lower court her
aforementioned petition against the PHHC board of directors, the
register of deeds of Quezon City and the spouses Ramon P. Mitra
and Salud O. Mitra. She questioned the legality of the award of
Lot 16 to Mitra. She asked that Lot 16 be sold to her.

After the respondents had filed their answers, the Mitra spouses
filed a verified motion for summary judgment. They assumed that
there was no genuine issue as to any material fact. Peregrina
Astudillo opposed the motion. The parties submitted memoranda.
The lower court treated the motion for summary judgment as a
motion to dismiss. It dismissed Peregrina's petition on the
grounds that she is a mala fide squatter and that the sale of Lot
16 to Mitra cannot be assailed by means of certiorari
and mandamus. Peregrina appealed to this Court.
Her four assignments of error raise questions of law. She
contends that the lower court erred in holding that certiorari
and mandamus do not lie in this case and that she has no right to
question the award to Mitra, and in not holding that the award of
Lot 16 to him was in contravention of the Anti-Graft and Corrupt
Practice Law and of the constitutional provision that a Senator or
Representative should not directly or indirectly be financially
interested in any contract with the government of any subdivision
or instrumentality thereof during his term of office.
In the ultimate analysis the issue is whether Peregrina Astudillo
has a cause of action to annul the sale of Lot 16 to Mitra and to
compel the PHHC board to award that lot to her.
We hold that she has no cause of action to impugn the award to
Mitra and to require that she be allowed to purchase the lot. As a
squatter, she has no possessory rights over Lot 16. In the eyes of
the law, the award to Mitra did not prejudice her since she was
bereft of any rights over the said lot which could have been
impaired by that award (Baez vs. Court of Appeals, L-30351,
September 11, 1974, 59 SCRA 15, 22).
The record does not show, and Peregrina does not claim, that
she is a member of the Piahan Homeowners Association some
of whose members are "deserving squatters" (Kempis vs.
Gonzales, L-31701, October 31, 1974, 60 SCRA 439).

In the familiar language of procedure, she was not entitled to sue

Mitra and the PHHC for the enforcement or protection of a right,
or the prevention of a wrong. Those respondents did not commit
any delict or wrong in violation of her rights because, in the first
place, she has no right to the lot. Not being principally or
subsidiarily bound in the contract of sale between Mitra and the
PHHC, she is not entitled to ask for its annulment (Art. 1397, Civil
Code).
Peregrina invokes the PHHC charter (erroneously referred to as
section 11 of Commonwealth Act No. 648) which provides that the
PHHC should acquire buildings so as to provide "decent housing
for those who may be unable otherwise to provide themselves
therewith" and that it should acquire large estates for their resale
to bona fideoccupants.
Those provisions do not sustain her action in this case. They do
not justify her act of squatting on a government-owned lot and
then demanding that the lot be sold her because she does not yet
own a residential lot and house. She is not a bona fide occupant
of Lot 16.
The State is committed to promote social justice and to maintain
adequate social services in the field of housing (Secs. 6 and 7,
Art. II, New Constitution). But the State's solicitude for the
destitute and the have-nots does not mean that it should tolerate
usurpations of property, public or private.
"In carrying out its social readjustment policies, the government
could not simply lay aside moral standards, and aim to favor
usurpers, squatters, and intruders, unmindful of the lawful and
unlawful origin and character of their occupancy. Such a Policy
would perpetuate conflicts instead of attaining their just solution"
(Bernardo vs. Bernards, 96 Phil. 202, 206).
Indeed, the government has enunciated a militant policy against
squatters. Thus, Letter of Instruction No. 19 dated October 2,

1972 orders city and district engineers "to remove all illegal
constructions, including buildings ... and those built without
permits on public or private property" and provides for the
relocation of squatters (68 O.G. 7962. See Letter of Instruction
No. 19-A). As noted by Justice Sanchez, "since the last global
war, squatting on another's property in this country has become a
widespread vice" (City of Manila vs. Garcia, L-26053, February
21, 1967, 19 SCRA 413, 418).
The lower court did not err in holding that Peregrina Astudillo
cannot use the special civil actions of certiorari and mandamus to
secure a judicial review of the award of Lot 16 to Mitra. Rule 65 of
the Rules of Court provides:
+.wph!1

SECTION 1. Petition for certiorari. When any

tribunal, board, or officer exercising judicial
functions, has acted without or in excess of its or
his jurisdiction, or with grave abuse of discretion
and there is no appeal, nor any plain, speedy, and
adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified
petition in the proper court alleging the facts with
certainty and praying that judgment be rendered
annulling or modifying the proceedings, as the law
requires, of such tribunal, board or officer.
The petition shall be accompanied by a certified
true copy of the judgment or order subject thereof,
together with copies of all pleadings and
documents relevant and pertinent thereto.
SEC. 3. Petition for mandamus. When any
tribunal, corporation, board, or person unlawfully
neglects the performance of an act which the law
specifically enjoins as a duty resulting from an
office, trust, or station, or unlawfully excludes
another from the use and enjoyment of a right or
office to which such other is entitled, and there is

no other plain, speedy and adequate remedy in

the ordinary course of law, the person agrieved
thereby may file a verified petition in the proper
court alleging the facts with certainty and praying
that judgment be rendered commanding the
defendant, immediately or at some other specified
time, to do the act required to be done to protect
the rights of the petitioner, and to pay the
damages sustained by the petitioner by reason of
the wrongful acts of the defendant.
Respondent PHHC board is not the board contemplated in
section 1 of Rule 65. It does not exercise judicial functions. The
award being questioned was a routinary corporate act that was
within the board's competence. No jurisdictional issue was
involved in that award. certiorari lies only for the correction of
jurisdictional errors (Gov't. of the P.I. vs. Judge of 1st Instance of
Iloilo 34 Phil 157, 159).
Nor is the relief sought by Peregrina Astudillo, which is to compel
the PHHC board to cancel the award of Lot 16 to Mitra and to
resell it to her, a right that can be enforced by mandamus. What
she wants is to force the PHHC to execute a contract of sale in
her favor. That is not within the purview of the writ of mandamus.
Thus, it was held that "the writ of mandamus is not an appropriate
or even admissible remedy to enforce, the performance of a
private contract which has not been fully performed by either
party" (Quiogue vs. Romualdez, 46 Phil. 337). In Jacinto vs.
Director of Lands, 49 Phil. 853, a petition for a writ of mandamus
to compel the Director of Lands to execute a deed of conveyance
for certain lots in favor of the petitioner was denied. Generally,
title to property cannot be litigated in a mandamus proceeding
(City of Manila vs. Posadas, 48 Phil. 309, 337).
It is not a ministerial duty of the PHHC board to award Lot 16 to
Peregrina. Anyway, it has already been shown that as a squatter

she is not clothed with any right to Lot 16 that may be enforced in
a court of justice.
The PHHC board completely ignored the alleged demands of
Peregrina for the purchase of Lot 16. It did not render any
decision against her. Its inaction cannot be assailed by certiorari
or mandamus.
Peregrina's other assignment of error is that the award of Lot 16
to Congressman Mitra was a violation of section 3(h) of the AntiGraft and Corrupt Practices Law and of section 17, Article VI of
the 1935 Constitution, now section 11, Article VIII of the new
Constitution.
On the other hand, Mitra contends that the PHHC performs
proprietary functions. He observed that the following high-ranking
officials were awarded PHHC lots: Felixberto Serrano, Dominador
Antonio, Manuel Lim, Fernando Lopez, Pacita M. Gonzales,
Genaro Magsaysay, Daniel Romualdez, Felipe A. Abrigo,
Bartolome Cabangbang, Juan Duran, Manuel Enverga, Angel
Fernandez, Jose Nuguid, Antonio de Pio, Lorenzo Teves,
Faustino Tobia, Pedro Trono, Marcelino Veloso and Valeriano
Yancha.
We are of the opinion that that assignment of error need not be
resolved in this case. Having shown that Peregrina has no cause
of action to assail the award of Lot 16 to Mitra, it follows that in
this particular case she cannot assail that award by invoking the
provisions of the Anti-Graft and Corrupt Practices Law and the
Constitution. This is not the proper forum for the ventilation of that
question. (See Commonwealth Act No. 626; Hernandez vs.
Albano, 112 Phil. 506; Solidum and Concepcion, Jr. vs.
Hernandez, 117 Phil. 335).
WHEREFORE, the lower court's order of dismissal is affirmed. No
costs.

SO ORDERED.

MELENCIO-HERRERA, J.:
The decision of the then Court of First Instance of Sorsogon,
Branch II, Gubat, Sorsogon, rendered in the exercise of its
appellate jurisdiction, dismissing Civil Case No. 1277, entitled
"Angel P. Peran vs. Encarnacion Evasco, et al.", for Forcible
Entry and Illegal Detainer, is being assailed in this Petition for
Review on certiorari on a question of law. Said Decision reversed
the judgment of the 2nd Municipal Circuit Court of BulusanBarcelona, Sorsogon, for Forcible Entry & Illegal Detainer.
The antecedent facts follow:

G.R. No. L-57259 October 13, 1983

ANGEL
P.
PERAN, petitioner,
vs.
THE HONORABLE PRESIDING JUDGE, BRANCH II, COURT
OF FIRST INSTANCE OF SORSOGON, 10th JUDICIAL
DISTRICT, RAMON ESPERA and ENCARNACION EVASCO, as
private-respondents, respondents.
Irene P. Escandor for petitioner.
Esteban Escalante, Jr. for private respondents.

The property in question, an unregistered residential land, with an

area of 1,225 square meters more or less, situated at Tagdon
Barcelona, Sorsogon, was originally owned by Jose Evasco. On
December 29, 1950, Jose Evasco executed a "Reparticion Extrajudicial" whereby he partitioned his properties among his five
heirs. 1Subject property was one of those alloted to his son,
Alejandro Evasco, who had it surveyed in 1956 (Exhibits "I" and "I-1")
who had it declared in his name under Tax Declaration No. 1900.
The other heirs received their own shares, one of them, the
deceased Anacleto Evasco, one of whose children was listed as
Encarnacion, possibly, the principal private respondent herein.
Alejandro Evasco sold his property to Jose E. Torella on
December 31, 1972, 2 who declared it for taxation purposes under
Tax Declaration No. 5157. 3 On July 10, 1977, Jose E. Torella, in
turn, sold the land to Jose Enriquez Sabater, 4 and the latter also
declared the property in his name under Tax Declaration No.
7127. 5 Petitioner Angel P. Peran acquired the land by purchase from
Jose Enriquez Sabater on December 27, 1978, 6 and subsequently
declared it, too, in his name under Tax Declaration No. 7310. 7 The
sale was duly recorded in the Register of Deeds' Office of the
province of Sorsogon on January 3, 1979 in accordance with the
provisions of Sec. 194 of the Revised Administrative Code as
amended by Act No. 3344.

Sometime in January 1979, petitioner personally asked private

respondents, Encarnacion Evasco and her common-law husband
Ramon Espera, whose house is erected on a 440 square meter
portion (44 sq, ms. according to petitioner) of the lot in question,
to remove the same and vacate the premises. Respondents
refused, and consequently, a confrontation between the parties
was had before the, Municipal Mayor of Barcelona and later
before the Municipal Judge of Bulusan-Barcelona to settle the
dispute, but to no avail.

February 4, (8), 1979, which was well beyond the one-year-period

of limitation, the cause of action having accrued from the sale of
the property by Alejandro Evasco to Jose E. Torella on December
31, 1972; and that since the only issue in an illegal detainer case
is physical possession, "whoever has prior possession, no matter
in what character, is protected by law."

On February 8, 1979, petitioner filed a complaint for Forcible

Entry and Illegal Detainer against private respondents before the
2nd Municipal Circuit Court of Bulusan-Barcelona, seeking the
ejectment of the latter from the portion in question contending that
respondents are mere squatters thereon; that they had prevented
plaintiff from entering the property and deprived him of
possession; and that they were tolerating persons in getting soil
and bringing about a gradual erosion of the land to his extreme
prejudice.

Petitioner appealed said judgment directly to this Tribunal on a

question of law, raising as the lone issue:

Private respondents answered denying the material allegations of

the Complaint, and alleging that they are the lawful possessors
for more than twenty (20) years of the said portion, which formerly
belonged to Jose Evasco, grandfather of Encarnacion Evasco
and that petitioner has no right to eject them therefrom.
On September 1, 1979, the 2nd Municipal Circuit Court of
Bulusan-Barcelona rendered its Decision ordering private
respondents to vacate the lot in question, return its possession to
petitioner, reimburse him attorney's fees of P300.00 and litigation
expenses, and to pay the costs. Reconsideration of the said
decision filed by private respondents was denied by said Court on
November 12, 1979. Private respondents appealed to respondent
Court of First Instance of Sorsogon, Branch II.
Respondent Court reversed the Municipal Circuit Court and
dismissed the case on March 28, 1980, ruling that said Court had
no jurisdiction over the case as the same was filed only on

Reconsideration of the said Decision sought by petitioner was

denied by respondent Court.

... whether the respondent court was in error

when for purposes of determining the jurisdiction
of the 2nd Municipal Circuit Court of BulusanBarcelona, to try Civil Case No. 1227, for Illegal
Detainer:
(a) it reckoned the counting of one-year period
within which to file the action from the sale of the
property in question by Alejandro Evasco to Jose
Torella on December 31, 1972 and not from the
date of demand made by the petitioner upon the
respondents; and
(b) by assuming that "prior possession in
whatever character is protected by law.
We rule for petitioner.
Private respondents admit that the land in question was originally
owned by Jose Evasco. The tax declarations covering their house
clearly state "house built on land owned by Jose Evasco under
Tax No. 1599". 8 Since the land had been partitioned to Alejandro
Evasco by his father, Jose Evasco, respondent Encarnacion can lay
no claim to the property even as a grand-daughter of Jose Evasco.

Respondents may have been in possession of the portion they

occupy prior to petitioner but they have not proved their title thereto,
nor their right to possess the same. As the 2nd Municipal Circuit
Court of Bulusan-Barcelona found, no concrete evidence was
introduced by respondents on this point. Moreover, it is noteworthy
that the validity of the "Reparticion Extrajudicial" whereby said lot
was adjudicated to Alejandro Evasco by his father Jose Evasco,
predecessors-in-interest of petitioner, had never been challenged.

If at all, private respondents' possession of their portion of the

property was by mere tolerance of petitioner's predecessors-ininterest, which, however, does not vest in them a right which they
can assert against petitioner. Possession by tolerance is lawful
but this becomes illegal when, upon demand to vacate by the
owner, the possessor refuses to comply with such demand. 9 A
possessor by tolerance is necessarily bound by an implied promise
to vacate upon demand, failing which a summary action for
ejectment is the proper remedy against him. 10 It is not necessary that
there be a formal agreement or contract of lease before an unlawful
detainer suit may be filed against a possessor by
tolerance. 11 Neither is prior physical possession of the property by
petitioner an indispensable requisite. 12The ruling of respondent
Court, therefore, that "since the only issue in forcible entry and illegal
detainer action is the physical possession of real property
possession de facto and n t possession de jurewhoever has prior
possession, no matter in what character, is protected by law," is
erroneous under the factual milieu herein,
A Forcible Entry and Unlawful Detainer action must be brought
within one year from the unlawful deprivation or withholding of
possession. 13 The one-year-period of limitation commences from
the time of demand to vacate, and when several demands are made,
the same is counted from the last letter of demand. 14 Demand may
either be personal or in writing. 15 The demand to vacate having been
made by petitioner in January 1979, and the ejectment suit having
been instituted on February 8, 1979, the 2nd Municipal Circuit Court
of Bulusan-Barcelona acted well within its jurisdiction in taking
cognizance of the case.

WHEREFORE, the assailed Decision of respondent Court of First

Instance of Sorsogon, Branch II, in Civil Case No.1227, is SET
ASIDE, and the Decision of the 2nd Municipal Circuit Court of
Bulusan-Barcelona is hereby reinstated,
Costs against private respondents.
SO ORDERED.

and passed upon by the Court of Appeals was confined to the

ownership of seven (7) hectares of land which form part of the twenty
two (22) hectares parcel of land covered by a torrens title in the name
of the petitioners. The Court of Appeals ruled that the respondents are
entitled to seven (7) hectares of the property but not necessarily the
seven (7) hectares possessed by them. They are entitled to copossession with appellees until the undivided seven (7) hectares are
definitely segregated through partition. We agree with the petitioners
that the execution ordered by the Court of First Instance allowing
respondents to enjoy possession over the entire twenty-two (22)
hectares with the petitioners, did not conform to the final judgment
being executed. We, therefore, rule that the co-possession mentioned
in the Court of Appeals judgment refers to the right of the
respondents, already certain and vested but not yet specific, over the
seven (7) hectares of the property in effect ranging but not specific
over the entire property. However, in the meantime that the partition is
not effected and the boundaries of the seven (7) hectares not spelled
out, the respondents shall continue to possess the seven (7) hectares
they have held since the litigated sale and enjoy all its fruits. They will
have no share of the fruits of the other fifteen (15) hectares nor its
enjoyment but neither shall the petitioners have any share in the fruits
or enjoyment of the seven (7) hectares held by the respondents. It
would be in the interests of all concerned if the partition of the
property among the heirs is effected immediately and the respondents
are finally given their definite seven (7) hectares as provided in the
appellate judgment.
[G.R.

No.

L-35833.

June

29,

1984.]

SUSANA DE LA CERNA LAINGO, TEODORO DACUYAN, ELENA

DACUYAN and SAMSON DACUYAN, Petitioners, v. DAMIAN
CAMILO
and/or
JUAN
MAGALLANES, Respondents.
Isidro

M.

Ampig,

DECISION

GUTIERREZ, JR., J.:

for Petitioners.

Gonzalo G. Latorilla, Kimpo & Kimpo for Respondents.

SYLLABUS

1. REMEDIAL LAW; JUDGMENTS; EXECUTION THEREOF; MUST

CONFORM TO FINAL JUDGMENT; CASE AT BAR. A reading of the
decision and its background facts shows that the controversy litigated

The issue raised in this petition is whether or not the execution

ordered by the respondent court conforms to the final judgment
embodied in the decision of the Court of Appeals in CA-G.R. No.
43920-R.
The petitioners filed a complaint as plaintiffs in Civil Case No. 5438 of
the Court of First Instance of Davao to recover a seven hectare portion
of a twenty-two hectare parcel of land in Malita, Davao.
The disputed property is part of a homestead applied for by Gaudencio

Dacuyan married to Susana de la Cerna and awarded in 1934 to the

"heirs of Gaudencio Dacuyan" because the applicant had died in the
meantime. The title was registered in October, 1934. In 1942, the
widow Susana de la Cerna describing herself as "half owner of the
conjugal property" sold seven (7) hectares of the land to Damian
Camilo, respondent in this case. Camilo, in turn, sold the land in 1966
to
the
other
respondent,
Juan
Magallanes.
The dispositive portion of the decision in the reivindicacion case
states:
jgc:chanroble s.com.ph

"WHEREFORE,
"1.

judgment
Dismissing

is

hereby
the

rendered:

jgc:chanrobles.com .ph

Complaint;

"2. Divesting the plaintiffs of ownership over seven hectares of the

southern side of the land covered by Original Certificate of Title No.
1175 of the Register of Deeds of Davao, more particularly, the portion
described in the deed of sale executed by Susana Cerna de Laingo on
November 20, 1972, in the presence of Jorge Agonias and Juan
Magallanes and acknowledged before Atty. Ramon M. Kimpo, and the
accompanying sketch marked as Exhibits 1 and 1-A, respectively and
vesting the same in Juan A. Magallanes, Filipino, married to Fedilina
Neri,
Filipino,
and
residing
at
Malita,
Davao;
"3. Directing the plaintiffs to allow Juan Magallanes to have the
aforesaid
land
surveyed;
and,
"4. Sentencing the plaintiffs jointly and severally to pay the defendants
P3,000.00
as
attorneys
fees,
with
costs."
cralaw

virtua1aw

library

Upon appeal by the petitioners, however, the Court of Appeals

modified the lower courts decision. The dispositive portion of the
appellate
decision
reads:

jgc:chanrobles.com .ph

"IN VIEW WHEREOF, this Court is constrained to modify as it now

modifies the judgment appealed from: the sale to appellees is held to
be valid only as to an undivided seven (7) hectares not of the specific
portion now litigated; appellants are entitled to co-possession thereof
with appellees until the undivided seven (7) hectares to which
appellees are entitled are definitely segregated thru partition; the
adjudication of attorneys fee is set aside; no more pronouncement as
to
cost."
cralaw

virtua1aw

library

After the judgment of the Court of Appeals had become final and

executory, the petitioners filed the necessary motion with the Court of
First Instance of Davao to issue a writ of execution placing them in copossession with the private respondents of the seven (7) hectares
being
litigated.
The private respondents filed a counter motion for the issuance of a
writ of execution praying that the petitioners be ordered to execute a
project of partition among the heirs and while doing so, segregate the
seven (7) hectares purchased and possessed by them from the date of
the document of sale. The petitioners, however, opposed the counter
motion emphasizing that the execution of judgment referred to an
action for recovery of possession of a specific seven (7) hectares of
land
and
not
to
an
action
for
partition
of
property.
The respondents countered with a rejoinder which admitted that the
judgment, while ambiguous, confirmed their rights over seven (7)
hectares of land sold to them. Since they have been in possession of a
specific seven (7) hectares of land on which they planted coconuts
already bearing fruits, the most equitable execution according to them
was for those seven (7) hectares to be the seven hectares adjudged in
the
decision.
The Court of First Instance decided the matter by issuing a writ of
execution allowing the respondents to enjoy possession over the entire
twenty-two (22) hectares with the petitioners. The questioned order,
the second paragraph of which is assailed in this petition reads:
jgc:chanrobles.com .ph

"On motion of the plaintiffs, through Atty. Ampig, and without

objection of Atty. Latorilla, counsel for the defendant, let a writ of
possession issue with respect to the seven (7) hectares, subject
matter of the suit, by allowing the plaintiffs to enjoy with the
defendants
possession
of
the
same.
"On oral motion of Atty. Latorilla, let a writ of possession issue with
respect to the remainder of the twenty-two (22) hectares by allowing
the defendants to enjoy with the plaintiffs possession of the rest of the
twenty-two
(22)
hectares.
SO

ORDERED."

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Two motions for reconsideration having been denied, the petitioners

raised the case to us directly on a pure legal issue which they state as
follows:
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THE COURT A QUO OR THE RESPONDENT JUDGE ERRED IN ORDERING

THE ISSUANCE OF A WRIT OF POSSESSION WITH RESPECT TO THE

REMAINDER OF THE TWENTY TWO (22) HECTARES BY ALLOWING THE
DEFENDANTS TO ENJOY WITH THE PLAINTIFFS POSSESSION OF THE
REST OF THE TWENTY TWO (22) HECTARES AND IN DENYING THE
TWO ((2) MOTIONS FOR RECONSIDERATION OF THE SAID ORDER.

portion litigated could not bind her co-plaintiffs; and this being the
final result the adjudication of attorneys fees must have to be
discarded;

The reasons given by the Court of Appeals for not granting undisputed
ownership of the seven (7) hectares already possessed by the
respondents are:

The judgment of the Court of Appeals, with the foregoing reasons for a
seemingly ambiguous judgment calling for a future segregation of
seven (7) hectares out of the twenty-two (22) hectares, has long
become
final
and
executory.

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"3. CONSIDERING: Now, as to this that while it is true that the Land
Tax Declaration in the name of the heirs of Gaudencio Dacuyan Exh. 3
was afterwards cancelled and reduced from its area of 22 hectares to
15 hectares under Exh. 3-A the remaining seven (7) hectares coming
to be declared in the name of the buyer Camilo Damian under Exh. 5A, 5-B, 5-C and 5-D, yet a scrutiny of these documents would not
show any participation of the other children of Gaudencio and Susana
namely Teodoro, Elena and Samson the co-plaintiffs in this case not
even any proof that they were informed of the sale; neither is there
any evidence present in the record positive in character that they had
ever consented to a physical segregation of the seven (7) hectare
portion sold by Susana unto Camilo so that the point of laches is
without any basis; it is true that Camilo and afterwards in 1966 his
successor-in-interest Juan Magallanes had been in possession
apparently exclusive since the sale to Camilo in 1942 under Exh. 1 but
the trouble is that exclusive possession by a co-owner cannot give rise
to prescription; the law has always been to the effect that between coowners prescription cannot run, Cortez v. Oliva, 33 Phil. 480 and in
order for prescription to run between themselves the repudiation of coownership must be clearly manifested which is not at all the case here
bearing in mind the undisputed fact that Camilo Damian did not even
attempt to register Exh. 1 nor notify said other children of Gaudencio
Dacuyan and tell them he was claiming the seven (7) hectare portion
as solely his own; and neither should it be overlooked that the title
being a Torrens title it cannot be the subject matter of prescription;
this will mean that notwithstanding the possession apparently
exclusive of Camilo Damian for more than twenty (20) years over the
seven (7) hectare portion, he cannot under the law be permitted to
claim absolute ownership therein; and as a corollary neither can his
successor-in-interest Juan Magallanes but since Susana was entitled to
at least 11 hectares; therefore her sale of seven (7) hectares if
undivided would have been valid, but a sale by her of this specific

"x

We agree with the petitioners that the execution ordered by the court
of first instance did not conform to the final judgment being executed.
We stated in Phil-American Accident Insurance Co., Inc. (97 SCRA 811)

"The questioned Order cannot be sustained. The judgment which was

sought to be executed ordered the payment of simple `legal interest
only. It said nothing about the payment of compound interest.
Accordingly, when the respondent judge ordered the payment of
compound interest he went beyond the confines of his own judgment
which had been affirmed by the Court of Appeals and which had
become final. Fundamental is the rule that execution must conform to
that ordained or decreed in the dispositive part of the decision.
Likewise, a court can not, except for clerical errors or omissions,
amend & judgment that has become final. (Jaob, Et. Al. v. Alo, et al,
91 Phil. 750 [1952]; Robles v. Timario, Et Al., 107 Phil. 809 [1960];
Collector of Internal Revenue v. Gutierrez, Et Al., 108 Phil. 215 [1960];
Ablaza v. Sycip, Et Al., 110 Phil. 4 [1960].) (Emphasis supplied).
At the same time, the mode of execution desired by the petitioners
would be unfair to the respondents and not in keeping with the
disposition really ordained by the Court of Appeals. As stated in
Macabuhay v. Manuel (101 SCRA 835) where we cited Padua v. Robles
(66
SCRA
485):

jgc:chanrobles.com .ph

". . . that the meaning, operation and consequences of a judgment

must be ascertained like any other written instrument and that a
judgment rests on the intention of the Court as gathered from every
part thereof including the situation to which it applies and the
attendant
circumstances."
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A reading of the decision and its background facts shows that the
controversy litigated and passed upon by the Court of Appeals was

confined to the ownership of seven (7) hectares of land which forms

part of the twenty two (22) hectares parcel of land covered by a
torrens
title
in
the
name
of
the
petitioners.
The Court of Appeals ruled that the respondents are entitled to seven
(7) hectares of the property but not necessarily the seven (7) hectares
possessed by them. They are entitled to co-possession with appellees
until the undivided seven (7) hectares are definitely segregated
through
partition.
For us to now rule that the respondents will enjoy co-possession with
the petitioners over seven (7) hectares which belongs to the former
would be inequitous even as actual co-possession over twenty two
(22) hectares would not conform to the final judgment. There is the
other consideration that segregation of the definite seven (7) hectares
must await the partition among the heirs, a procedure outside the
control
of
the
respondents.
We, therefore, rule that the co-possession mentioned in the Court of
Appeals judgment refers to the right of the respondents, already
certain and vested but not yet specific, over any seven (7) hectares of
the property, in effect ranging but not specific over the entire property.
However, in the meantime that the partition is not effected and the
boundaries of the seven (7) hectares not spelled out, the respondents
shall continue to possess the seven (7) hectares they have held since
the litigated sale and enjoy all its fruits. They will have no share of the
fruits of the other fifteen (15) hectares nor its enjoyment but neither
shall the petitioners have any share in the fruits or enjoyment of the
seven (7) hectares held by the respondents. It would be in the
interests of all concerned if the partition of the property among the
heirs is effected immediately and the respondents are finally given
their definite seven (7) hectares as provided in the appellate
judgment.
WHEREFORE, the petition is hereby GRANTED. The second paragraph
of the questioned order is DELETED. The respondents shall continue to
exclusively possess and enjoy the seven (7) hectares actually held by
them in accordance with the terms of this decision until a partition is
effected
and
their
share
is
definitely
segregated.
SO ORDERED.

Cornelio C. Cardenas and Valeriano S. Peralta for petitioners.

Estanislao L. Cesa, Jr. for respondents.

BIDIN, J.:
This is a petition for review on certiorari with preliminary injunction
and restraining order of the decision of the Court of Appeals * dated
March 4, 1987 in CA-G.R. No. SP No. 08710, "Maximo Gabrito et al. vs. Hon. Nicias O.
Mendoza and Roberto Tan et al.," affirming the April 2, 1986 decision of the Regional Trial
Court of Olongapo City ** which also affirmed the decision of MTCC, Branch V, Olongapo
City, and the Resolution of respondent court dated March 30, 1987 denying herein
petitioners' motion for reconsideration.

The appeal originated as an unlawful detainer complaint filed by

herein private respondents with the Municipal Trial Court, Branch
V, Olongapo City.
The antecedent facts as summarized by the Court of Appeals are
as follows:

G.R. No. 77976 November 24, 1988

MAXIMO GABRITO, ROGER LIBUT, CARMELITA UY, LIZA DE
VERA, thru her Attorney-in-Fact, JESUS DE LOS
SANTOS, petitioners,
vs.
THE HON. NINTH DIVISION, COURT OF APPEALS, THE HON.
NICIAS O. MENDOZA, Presiding Judge Branch 74, Regional
Trial Court, Olongapo City, ET AL., respondents.

The spouses Roberto Tan and Benita Ching-Tan

filed a complaint in the Municipal Trial Court
against defendants Maximo Gabrito, et al.,
alleging that they are the possessors and legal
owners of the property situated at No. 107 Gordon
Ave., New Kalalake, Olongapo City as evidenced
by Tax Declaration No. 4-2046. The defendants
are leasing portions of this parcel of land, each
paying the corresponding monthly rentals due
thereon.
On the leased portion, the defendants constructed
buildings and have allowed other persons to
sublease the same for commercial purposes.

As the spouses Tan have no other property where

they could construct their residential house, the
spouses Tan notified the defendants (in January
1984) that they intend to personally use the land
to build their house thereon and gave defendants
three (3) months to vacate the premises and
remove the structures and improvements which
defendants had constructed thereon.
In April 1984, defendants requested for an
extension of time within which to vacate, which
was granted by the spouses Tan. However, from
that time on, defendants also stopped paying
monthly rentals due on the land they leased.
In view of this, in July 1984, defendants were told
to leave the premises and to pay rentals in
arrears. As defendants refused to comply with
both demands, the matter was brought to the
Barangay Council for settlement. As no
agreement was reached, a certification to file
action was issued to the spouses Tan. Hence, the
Tans filed an action for unlawful detainer with
damages against Gabrito, et al.
In answer to the complaint, defendants Gabrito, et
al. denied the material allegations of the complaint
and alleged that: they are builders in good faith
over the land as provided in Article 448 of the Civil
Code; the land where the houses of defendants
were built is a public land, not yet awarded nor
titled to anybody; plaintiffs's alleged predecessorin-interest not being the owner thereof could not
have passed nor transferred ownership thereof to
them (plaintiffs) considering that Gloria Carillo's
Miscellaneous Sales Application No. (X-4-4320)
has not yet been acted upon by the Bureau of
Lands; plaintiffs and their predessors-in-interest

are absentee applicants over the land, hence, are

disqualified to own the same; plaintiffs have never
been in possession of the land while the
defendants are in actual physical possession
thereof; the sale of plaintiffs' alleged predecessorin-interest in favor of plaintiffs is null and void for
being in violation of P.D. No. 1517 as defendants
being lessees of the land have the right of first
refusal thereof.
Defendants brought a counterclaim for damages
against the plaintiffs. (Rollo, Annex "C", pp. 3940).
Respondent Municipal Trial Judge applied the rule on summary
procedure in this case, rendered its decision dated November 22,
1985, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered for
all the defendants to vacate the parcel of land
described in par. 3 of the complaint, removing
therefrom the buildings and any other
improvements respectively owned by them; and to
pay plaintiffs the following as reasonable
compensation for the use of the premises:
Maximo
Gabritoat
P250.00 per month from April 1984 until he
vacates
the
premises;
Roger
Libutat
P150.00 per month from May 1984 until he
vacates
the
premises;
Liza
de
Veraat:
P150.00 per month from April 1984, until she
vacates the premises; Carmelita Uyat
Pl 70.00 per month from April 1984, until she
vacates the premises.

for all defendants to pay, in equal shares,

damages by way of attorney's fees in the amount
of ONE THOUSAND PESOS ( P1,000.00 ) as well
as costs.
SO ORDERED. (Rollo, p. 35).
On appeal to the Regional Trial Court (Civil Case No. 450-08-5),
the decision of the Municipal Trial Court was affirmed in its
decision dated April 2, 1986, the dispositive portion of which
reads:
WHEREFORE, premised on all the foregoing
consideration and finding no prejudicial and
reversible error was ever committed by the lower
Court, the Court affirms in toto the decision being
appealed, with costs against the defendantsappellants.
SO ORDERED. (Rollo, Annex 'B' p. 38).
On review, herein respondent Court of Appeals sustained the
decision rendered by the Regional Trial Court Branch LXXIV, and
ruled;
WHEREFORE, the Petition for Review herein is
DISMISSED for lack of merit. (Rollo, Annex "C", p.
44).
On March 16, 1987, the petitioner filed their "Motion for
Reconsideration and Opposition to the Motion for Immediate
Execution Pending Further Proceedings" which was denied by
the Ninth Division of respondent Court of Appeals in its
Resolution dated March 30, 1987 and granted the Motion for
Immediate Issuance of a Writ of Execution filed by private
respondents (Annex "F", Rollo, pp. 57-58).

Hence, this petition for review on certiorari filed on April 13, 1987.
On April 21, 1987, Acting Chief Justice Andres Narvasa,
authorized the grant of Temporary Restraining Order in this case
which was confirmed by the Second Division of this Court in its
Resolution dated April 27, 1987 (Rollo, pp. 86, 87, 88).
In a Resolution dated June 8, 1987, petitioners were required to
comment on the motion dated April 26, 1987 (Rollo, p. 94) of
counsel for respondents, praying to set aside the temporary
restraining order issued on April 21, 1987 and to issue a writ of
execution pending appeal or to allow the Court of Appeals to
proceed with the execution of the decision pending appeal (Rollo,
p. 115), which was complied with by petitioners on July 22, 1987
(Rollo, p. 143).
In the resolution of October 5, 1987 (Rollo, p. 187) the petition
was given due course and the parties were required to submit
their respective memoranda within twenty (20) days from notice.
Petitioners' memorandum was submitted on December 3, 1987
(Rollo, p. 196). Respondents submitted their memorandum on
April 12, 1988 (Rollo, p. 235). Petitioners raised the following
issues:
1. That a Municipal Trial Court has no jurisdiction
to take cognizance of a case for Unlawful
Detainer under Sec. 1 of Rule 70 of the Rules of
Court, where the plaintiffs are merely the legal
possessors and recent transferees of a public
land, and the defendants are the absolute owners
of the building existing on the same land, for a
number of years already.
2. That the respondent Regional Trial Court,
Branch LXXIV, Olongapo City, ought to have
dismissed the action for Unlawful Detainer and as

the same was also heard on appeal by the said

Court on this jurisdictional challenge.
3. The market value of the residential houses or
buildings of the defendants on the said land is
approximately P170,000.00, and it was with
plaintiffs' predecessor-in-interest, one Gloria
Carillo-Potente that defendants caused said
structures to be erected on said land plaintiffs
having only acquired from said predecessor, by
means of a Deed of Sale of such rights sometime
on January 5, 1984.
4. Upon this frame of facts which are admitted in
the Decision of both Courts, only a Court of
General Jurisdiction, a Regional Trial Court, can
have the competence to try and decide the same:
the Court of Special Limited Jurisdiction, cannot
take cognizance of such facts as an action for
Unlawful Detainer.
5. Arguendo, that the Court of Origin has
jurisdiction to take cognizance of the cause of
action for Unlawful Detainer, it should have not
heard the case in accordance with the Rules of
Summary Proceedings, and based its Decision on
an Affidavit hearing, as the question of ownership
was being contested between plaintiffs and
defendants, with respect to whom was the
preferred grantee to the same land, and which
falls under the complete administration and
control of the Bureau of Lands.
6. In fact, the Court of Origin, Branch V, Municipal
Trial Court in Cities, Olongapo, should have
suspended the proceedings, as there was an
Administrative Protest being heard by the District
Land Office of Olongapo City.

7. On the question of suspension of proceedings

denied by the Court of Origin, Municipal Trial
Court in Cities, Branch V, Olongapo City, an
action for certiorari was filed before Branch LXXIII
of Regional Trial Court, Olongapo City, Civil Case
No. 399-0-85, and although a Restraining Order
against Municipal Trial Court in Cities, Branch V,
City of Olongapo, was issued, the same was
already academic as by that time said Municipal
Trial Court, Branch V, Olongapo City, has already
rendered its Decision in favor of private
respondent hereat, plaintiff therein.
8. Branch LXXIV, Regional Trial Court, Olongapo,
in its Decision rendered on appeal, did not pass
upon such matters, specified supra, so as to
reverse the Decision of the Court of Origin: the
subject Decisions, have not considered the due
process rights of petitioners toward their
residences and structures, the same are facing
the risk of condemnation and destruction without
fair hearing, and such improvements have an
aggregate value of Pl70,000.00, more or less.
9. Respondent Honorable Judge Mendoza of
Branch LXXIV, Regional Trial Court, Olongapo,
may have been misled by the citation of authority,
case of Vda. de Bocaling vs. Laguna, et al., 54
SCRA, 243, relied upon by appellees, said case
being totally inapplicable to the facts of this case.
10. Respondent Deputy Sheriff Rogelio Lumanlan,
without regard to the fif'teen (15) days period
finality of the Order and/or Writ of Demolition,
harrassed herein petitioners, notwithstanding the
pendency of matters involved to their extreme
discomfort and anxiety.

11. The Decision of the Honorable Court of

Appeals, Annex "C", sustained the Decision of the
Regional Trial Court and ignored the vital issues
posed
for
resolution:
A
Motion
For
Reconsideration, copy is hereto attached as
Annex "D", was presented, precisely to stress the
same but, a pointed or precise ruling upon such
issues was avoided in the Resolution dated 30th
of March, 1987, true copy attached herein as
Annex "E".

All of which boil down to the main issue of whether or not an

action for unlawful detainer is the proper action to oust petitioners
from their occupation of the land in dispute.

12. On the other (sic) upon Motion of private

respondents, the Tans, despite Opposition
thereto, Writ of Execution pending appeal was
issued and respondent Deputy Sheriff Lumanlan
enforced the same, copy of which is hereto
attached as Annex "F": true copy of Notice to
Vacate served by said respondent Deputy Sheriff
to petitioners is attached as Annex "G" herein.

In a preliminary conference held pursuant to Section 6 of the Rule

on Summary Procedure, defendants admitted that they entered
the premises as lessees and had been paying rentals for the use
of the land to Gloria Carillo, private respondents' predecessor-ininterest (Order dated May 15, 1985 in Civil Case No. 2511, MTC,
Olongapo City, Branch V; Rollo, pp. 72-73). When requested to
vacate the premises, petitioners asked for an extension of time
which request was granted. However, petitioners failed to vacate
the premises and also stopped paying rentals. In view of said
admissions, petitioners had unquestionably recognized private
respondents' prior right of possession over the questioned
property.

13. Per Annex "D" Motion For Reconsideration a

constitutional point, was reared forth, on first
impression, per proviso of Sec. 10, Art. XIII-new,
1986 Constitution, relevant to demolition and
resettlement, and, Resolution, dated 30th March,
1987, Annex "E", of the Honorable Appellate
Authority, avoided said constitutional question,
without passing upon the same.
14. Of Jurisdictional matters: Decision dated
March 4, 1987, of the Honorable Court of Appeals
was, received on March 6, 1987, Motion For
Reconsideration was filed on March 16, 1987, and
Resolution dated 30th of March, 1987, denying
Motion for Reconsideration was received on April
1, 1987: thus, this Petition is filed within the 15
day period. (Rollo, pp. 4-8).

There is no question as to the ownership of the land in litigation

as both petitioners and private respondents admit that the same
is a public land and owned by the government. The bone of
contention is, who has a better right to possess the land which
definitely falls under the jurisdiction of the Municipal Trial Court
and the rule of summary procedure may properly be applied.

<re||an1w>

Petitioners' allegation in their answer that they are builders in

good faith over the land as provided for in Article 448 of the Civil
Code is untenable. As ruled by this Court, Article 448 of the Civil
Code, applies only where one builds on land in the belief that he
is the owner of the land, but does not apply where one's interest
in the land is that of a lessee under a rental contract (Balucanag
v. Francisco, 122 SCRA 498 [1983]). More than that, it has been
settled that the mere fact that, in his answer, defendant claims to
be the exclusive owner of the property from which plaintiff seeks
to eject him is not sufficient to divest the Municipal Trial Court of
jurisdiction (Vivar v. Vivar, 8 SCRA 847, 849 [1963]; De Santa vs.
Court of Appeals, 140 SCRA 52 [1985]).

In addition, this Court held in Bocaling v. Laguna, et al (54 SCRA

243, 250 [1973]) that:
The rule is well-settled that lessees, like petitioner,
are not possessors in good faith because he knew
that their occupancy of the premises continues
only during the life of the lease, and they cannot
as a matter of right, recover the value of their
improvements from the lessor, much less retain
the premises until they are reimbursed. Their
rights are governed by Article 1678 of the Civil
Code which allows reimbursement of lessees up
to one-half of the value of their improvements if
the lessor so elects.
Petitioners contend that the above cited case is "completely
inapplicable to the case at bar, because the genesis case of
Ejectment therein was subjected to a compromise Agreement"
(Rollo, p. 18). Such contention is, however, untenable. One of the
issues raised in the above-cited case was whether or not lessees
are builders and/or possessors in good faith entitled to
reimbursement for the value of their improvements. The Court
categorically resolved the issue in the negative without
qualification nor even a reference to the compromise agreement
alluded to by the petitioner.
In a later development, petitioners filed a supplemental
memorandum submitting the decision of the Bureau of Lands
dated June 7, 1987, the dispositive portion of which reads:
IN VIEW OF ALL THE FOREGOING, the
Miscellaneous Sales Application No. 4320 of
Benita Ching Tan should be, as hereby as it is
rejected forfeiting to the government whatever
amount had been paid on account thereof. The
miscellaneous sales application of Maximo
Gabrito, Carmelita Uy, Roger Libut and Liza de
Vera shall continue to be given due course after a

subdivision survey of the portion occupied by

them shall have been made at their pro-rata
expense.
SO ORDERED.
In view thereof, petitioners maintain that they are the lawful
owners of the buildings and the legal possessors of subject land
and that the records of the court proceedings show the pendency
of the administrative protest before the Bureau of Lands between
the same litigating parties (Rollo, pp. 166-167).
Respondents countered that the decision of the Bureau of Lands
granting preferential right to the petitioners to apply for the subject
parcel of land is still on appeal before the Department of Natural
Resources. 1 Hence, said decision which is not yet final, cannot
affect the outcome of this case because the authority given to the
land department over the disposition of public land does not exclude
the courts from their jurisdiction over possessory actions, the
character of the land notwithstanding (Rollo, pp. 246-247).
The contention of private respondents is well taken.
This issue has long been laid to rest by this Court. As early as the
case of Pitarque v. Sorilla (92 Phil. 55 [1952]), this Court ruled
that:
The vesting of the Lands Department with
authority to administer, dispose of, and alienate
public lands must not be understood as depriving
the other branches of the Government of the
exercise of their respective functions of powers
thereon, such as the authority to stop disorders
and quell breaches of peace by the police and the
authority on the part of the courts to take
jurisdiction over possessory actions arising

therefrom not involving, directly or indirectly,

alienation and disposition.
Said ruling was reiterated in Bahayang v. Maceren, 96 Phil 390
(1955); in Molina v. De Bacud, 19 SCRA 56 (1967) and in Rallon
v. Ruiz, Jr., 28 SCRA 331 (1969). In the latter case, the Court
specifically ruled on the jurisdictional question, as follows:
Courts have jurisdiction over possessory actions
involving public lands to determine the issue of
physical possession (in forcible entry cases
before the inferior court) on the better right of
possession (in accion publiciana cases before
court of first instance). And this is because the
issue of physical possession raised before the
courts is independent of the question of
disposition and alienation of public lands which
should be threshed out in the Bureau of Lands.
The above ruling was further reiterated in Francisco v. Secretary
of Agriculture and Natural Resources (121 SCRA 380 [1983]) and
in a recent case of National Development Co., et al. v.
Hervilla, G.R. No. 65718, June 30, 1987 (151 SCRA 520), where
it was held that:
It is now well settled that the administration and
disposition of public lands are committed by law to
the Director of Lands primarily, and ultimately to
the Secretary of Agriculture and Natural
Resources. The jurisdiction of the Bureau of
Lands is confined to the determination of the
respective rights of rival claimants of public lands
or to cases which involve disposition and
alienation of public lands. The jurisdiction of
courts is limited to the determination of who has
the actual, physical possession or occupation of
the land in question (in forcible entry cases,
before municipal courts) or, the better right of

possession (in accion publiciana, in cases before

the Court of First Instance, now Regional Trial
Court).
And even more recently in the case of Guerrero v. Amores, et
al., G.R.
No.
L-34492 promulgated on March 28, 1988, the Court clearly stated
that "pending final adjudication of ownership by the Bureau of
Lands, the Court has jurisdiction to determine in the meantime
the right of possession over the land." Corollary thereto, the
power to order the sheriff to remove improvements and turn over
the possession of the land to the party adjudged entitled thereto,
belongs only to the courts of justice and not to the Bureau of
Lands.
In the same case, the application of the principle of exhaustion of
administrative remedies with reference to public lands, was
further clarified by this Court as follows:
On the other hand, the application of the principle
of exhaustion of administrative remedies as a
condition precedent to the filing of a juridical
action is confined to controversies arising out of
the disposition of public lands (Geukoko vs.
Araneta, 102 Phil. 706 (1957); Marukot vs.
Jacinto, 98 Phil. 128 (1957), alienation of public
lands (Rallos vs. Ruiz, Jr., supra) or to the
determination of the respective rights of rival
claimants to public lands (Pitarque vs.
Sorilla, supra) and not to possessory actions
involving public lands which are limited to the
determination of who has the actual, physical
possession or occupation of the land in question
(Rallos vs. Ruiz, Jr., supra).
<re||an1w>

In fact, the Bureau of Lands in its decision of June 7, 1987,

admitted the jurisdiction of the courts to decide the case on the

question of physical possession, although not on the question of

ownership (Rollo, p. 179).
Under the circumstances, a careful study of the records failed to
show any cogent reason to disturb the findings of the Municipal
Trial Court in Cities and of the Regional Trial Court, both of
Olongapo City, and finally of the Court of Appeals.

WHEREFORE, the decision of respondent Court of Appeals is

AFFIRMED and the temporary restraining order is lifted. Costs
against petitioners.
SO ORDERED.