Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 75886 August 30, 1988
CONCEPCION ROQUE, petitioner,
vs.
HON. INTERMEIATE APPE!!ATE COURT, ERNESTO ROQUE, "I!OMENA
OSMUNO, CECI!IA ROQUE, MARCE!A ROQUE, #OSE ROQUE $%& RU'EN
ROQUE, respondents.
Lorenzo J. Liwag for petitioner.
Dominador Ad Castillo for private respondents.

"E!ICIANO, J.:
The subect of the present Petition for Revie! is the "# $ul% #&'( Decision of the
for)er Inter)ediate *ppellate +ourt in *+,-.R. +V No. .//0' 1entitled, 2+oncepcion
Ro3ue, plaintiff,appellee, vs. 4rnesto Ro3ue, 5ilo)ena Os)unda +ecilia Ro3ue,
Marcela Ro3ue, $ose Ro3ue and Ruben Ro3ue, defendants,appellants26 !hich
reversed and set aside on appeal the decision of the Re7ional Trial +ourt of Malolos,
8ranch &.
The controvers% here involves a "#/ s3uare )eter parcel of land situated in San $uan,
Malolos, 8ulacan and desi7nated as 9ot No. #:0& of the +adastral Surve% of Malolos.
The propert% !as re7istered ori7inall% in the na)e of $anuario *venda;o, a bachelor
!ho died intestate and !ithout issue on // October #&0:.
On /# Septe)ber #&:&, the intestate heirs of $anuario *vendafio e<ecuted a
docu)ent entitled 2Pa7hahati at Pa7ta7abu%an n7 Mana sa 9abas n7 Hu=u)an.2
1

Throu7h this instru)ent, e<traudicial partition of 9ot No. #:0& !as effected a)on7 the
intestate heirs as follo!s>
a. One,fourth 1#?06 undivided portion to Illu)inada *venda;o.
b. One,fourth 1#?06 undivided portion to -re7orio *vendafio and
Mi7uel *venda;o.
c. One,fourth 1#?06 undivided portion to 8ernardino, 8ienvenido,
Nu)eriano and Rufina, all surna)ed *venda;o.
d. One,fourth 1#?06 undivided portion to respondent 4)esto Ro3ue
and Victor Ro3ue.
(

On /' Septe)ber #&:&, co,o!ners Illu)inada, -re7orio, Mi7uel, 8ernardino,
8ienvenido, Nu)eriano and Rufina, all surna)ed *venda;o, in consideration of the
a77re7ate a)ount of P:....., transferred their collective and undivided threefourths
1"?06 share in 9ot No. #:0& to respondent 4rnesto Ro3ue and Victor Ro3ue, thereb%
vestin7 in the latter full and co)plete o!nership of the propert%. The transactions !ere
e)bodied in t!o 1/6 separate deeds of sale both entitled 2@asulatan n7 8ilihan7
Patulu%an2
3
and both dul% notariAed. Subse3uentl%, in an unnotariAed 28ilihan 9ubos
at Patulu%an2
)
dated /B Nove)ber #&(#, 4)esto and Victor Ro3ue purportedl% sold a
three,fourths 1"?06 undivided portion of 9ot No. #:0& to their half,sister, petitioner
+oncepcion Ro3ue, for the sa)e a)ount. The propert%, ho!ever, re)ained re7istered
in the na)e of the decedent, $anuario *venda;o.
Cpon the instance of petitioner +oncepcion Ro3ue and alle7edl% of respondent
4rnesto Ro3ue, 9ot No. #:0& !as surve%ed on /. Septe)ber #&B:. +onse3uent
thereto, a Subdivision Plan
5
!as dra!n up b% the -eodetic 4n7ineer Identif%in7 and
delineatin7 a one,fourth 1#?06 portion 1B' s3uare )eters6 of the propert% as belon7in7
to respondent 4rnesto Ro3ue and Victor Ro3ue 1!ho had died on #0 *pril #&(/6, upon
the one hand, and a three,fourths 1"?06 portion 1/"0 s3uare )eters6 of the sa)e
propert% as belon7in7 to petitioner +oncepion Ro3ue, upon the other hand. Petitioner
clai)ed that preparation of the Subdivision Plan, !hich !as approved on " Nove)ber
#&B: b% the 9and Re7istration +o))ission !as a preli)inar% step leadin7 eventuall%
to partition of 9ot No. #:0&, partition alle7edl% havin7 been previousl% a7reed upon
inter se b% the co,o!ners. Respondents 4rnesto Ro3ue and the le7al heirs of Victor
Ro3ue, ho!ever, refused to ac=no!led7e petitionerDs clai) of o!nership of an% portion
of 9ot No. #:0& and reected the plan to divide the land.
*tte)pts at a)icable settle)ent havin7 fallen throu7h, petitioner +oncepcion Ro3ue,
on ( Dece)ber #&BB, filed a +o)plaint for 2Partition !ith Specific Perfor)ance2
6

1doc=eted as +ivil +ase No. :/"(,M6 !ith 8ranch / of the then +ourt of 5irst Instance
of Malolos a7ainst respondents 4)esto Ro3ue and the heirs of Victor Ro3ue. In her
co)plaint, petitioner 1plaintiff belo!6 clai)ed le7al o!nership of an undivided
threefourths 1"?06 portion of 9ot No. #:0&, b% virtue of the /B Nove)ber #&(# 28ilihan
9ubos at Patulu%an2 e<ecuted in her favor b% 4)esto Ro3ue and Victor Ro3ue. In
support of this clai), petitioner also presented an undated and unnotariAed
2@asulatan7 Pa7=ilala sa 8ilihan Patulu%an n7 8aha7ui at Pa7)a)ana sa 9abas n7
Hu=u)an at Pa7hahati,hati at *bu%an n7 8aha7ui2
7
said to have been si7ned b% the
respondents in ac=no!led7)ent of the e<istence and validit% of the 8ilihan in favor of
petitioner. 5inall%, petitioner alle7ed that, as a coo!ner of 9ot No. #:0&, she had a ri7ht
to see= partition of the propert%, that she could not be co)pelled to re)ain in the
coo!nership of the sa)e.
1
In an *ns!er !ith +o)pulsor% +ounterclai)
8
filed on /' Dece)ber #&BB,
respondents 1defendants belo!6 i)pu7ned the 7enuineness and due e<ecution of the
28ilihan 9ubos at Patulu%an2 dated /B Nove)ber #&(# on the 7round 2that the
si7natures appearin7 thereon are not the authentic si7natures of the supposed
si7natories ....2 It !as also alle7ed that petitioner +oncepcion Ro3ue, far fro) bein7 a
co,o!ner of 9ot No. #:0&, 2occupied a portion of the lot in 3uestion b% )ere tolerance
of the EdefendantsF.2 Respondents also refused to honor the unnotariAed Kasulatan
and, additionall%, denied havin7 had an% participation in the preparation of the
Subchvision Plan.
On /B $une #&'", the trial court 1no! 8ranch &, Re7ional Trial +ourt of Malolos6
rendered a Decision,
9
the dispositive portion of !hich read>
GH4R45OR4, ud7)ent is hereb% rendered, in favor of the plaintiff
and a7ainst the defendantsH
#. Orderin7 the heirs of the late Victor Ro3ue na)el% 5ilo)ena
Os)unda his spouse, his children, +ecilia Ro3ue, Marcela Ro3ue,
$ose Ro3ue and Ruben Ro3ue and their uncle and co,defendant
4)esto Ro3ue, to e<ecute a deed of confir)ation of the sale )ade
b% 4)esto and Victor Ro3ue in favor of plaintiff +oncepcion Ro3ue,
entitled 28ilihan 9ubos at Patulu%an,2 e<ecuted on Nove)ber /B,
#&(#, 4<h. 4, over the "?0 portion of the subect propert%H
/. Orderin7 the partition of the parcel of land described in par. " of tie
co)plaint covered b% Ori7inal +ertificate of Title No. #00/ 8ulacan
issued in the na)e of $anuario *vendafio, in the proportion of "?0 to
pertain to +oncepcion Ro3ue, and #?0 to pertain to 4)esto Ro3ue
and his co, defendants, his sister,in,la!, nephe!s and nieces, in
accordance !ith the approved subdivision plan 19R+ Psd,/".B/(6.
". Orderin7 defendants,ointl% and severall%, to pa% to plaintiff the
su) of P/,...... as and for atto)e%Ds fees and the costs of suit.
SO ORD4R4D.
The respondents appealed fro) this decision alle7in7 the follo!in7 errors>
I
The lo!er court erred !hen it decided and ordered
defendantsappellants to e<ecute a confir)ation of the 28ilihan 9ubos
at Patulu%an,2 4<h. 24.2
II
The lo!er court erred !hen it decided and ordered the
defendantsappellant,s to deliver unto the plaintiff EaF "?0 share of the
land in 3uestion.
III
The lo!er court erred in decidin7 this case in favor of the plaintiff,
appellee, based on an unnotariAed and for7ed si7nature of
defendantappellant 4rnesto Ro3ue.
IV
The lo!er court erred in 7ivin7 credence to the testi)on% of the
plaintiff,appellee +oncepcion Ro3ue despite EitsF 7ross
inconsistencies.
10

*ctin7 on the appeal 1doc=eted as *.+.,-.R. +V No. .//0'6, the Inter)ediate
*ppellate +ourt, in a Decision
11
dated "# $ul% #&'(, reversed the ud7)ent of the trial
court and dis)issed both the petitionerDs co)plaint and the respondentsD appeal. *
Motion for Reconsideration of petitioner +oncepcion Ro3ue !as denied.
The present Petition for Revie! !as filed !ith this +ourt on #' Septe)ber #&'(. In a
resolution dated /B $ul% #&'B, !e 7ave due course to the Petition and re3uired the
parties to sub)it their respective Me)oranda.
#. On the )atter of dis)issal of petitionerDs co)plaint, the Inter)ediate *ppellate +ourt
stated in its decision>
Ghile the action filed b% the plaintiff is for partition, the defendantA,
after den%in7 plaintiffDs assertion of co,o!nership, asserted that the%
are the e<clusive and sole o!ners of the "#0 portion of the parcel of
land clai)ed b% the plaintiff.
Upon the issue thusjoined by the pleadings it is obvious that the
!ase has be!ome one ofownership of the disputed portion of the
subje!t lot.
It is !ell settled that an action for partition !ill not prosper as such
fro) the )o)ent an alle7ed co,o!ner asserts an adverse title. The
action that )a% be brou7ht b% an a77rieved co,o!ner is accion
reivindicatoria or action for recover% of title and possession 1$ardin
vs. Hallas7o, ## B S+R* :"/, :"(, :"BH Paner vs. -aspar, " +*
Rep. #::, #:'6. 14)phasis supplied6
Vie!ed in the li7ht of the facts of the present case, the Inter)ediate *ppellate +ourtDs
decision appears to i)pl% that fro) the )o)ent respondents 1defendants belo!6
2
alle7ed absolute and e<clusive o!nership of the !hole of 9ot No. #:0& in their *ns!er,
the trial court should have i))ediatel% ordered the dis)issal of the action for partition
and petitioner 1plaintiff belo!6, if she so desired, should have refiled the case but this
ti)e as an accion reinvindi!atoria. Ta=in7 this anal%sis a step further should the
reivindicator% action prosper I i.e., a co,o!nership relation is found to have e<isted
bet!een the parties I a second action for partition !ould still have to be instituted in
order to effect division of the propert% a)on7 the co,o!ners.
Ge do not a7ree !ith the above vie!. *n action for partition,!hich is t%picall% brou7ht
b% a person clai)in7 to be co,o!ner of a specified propert% a7ainst a defendant or
defendants !ho) the plaintiff reco7niAes to be co,o!ners I )a% be seen to present
si)ultaneousl% t!o principal issues. 5irst, there is the issue of !hether the plaintiff is
indeed a co,o!ner of the propert% sou7ht to be partitioned. Second, assu)in7 that the
plaintiff successfull% hurdles the first issue, there is the secondar% issue of ho! the
propert% is to be divided bet!een plaintiff and defendant1s6 I i.e., !hat portion should
7o to !hich co,o!ner.
Should the trial court find that the defendants do not dispute the status of the plaintiff
as co,o!ner, the court can forth!ith proceed to the actual partitionin7 of the propert%
involved. In case the defendants assert in their *ns!er e<clusive title in the)selves
adversel% to the plaintiff, the court should not dis)iss the plaintiffs action for partition
but, on the contrar% and in the e<ercise of its 7eneral urisdiction, resolve the 3uestion
of !hether the plaintiff is co,o!ner or not. Should the trial court find that the plaintiff
!as unable to sustain his clai)ed status as co,o!ner, or that the defendants are or
have beco)e the sole and e<clusive o!ners of the propert% involved, the court !ill
necessaril% have to dis)iss the action for partition. This result !ould be reached, not
because the !ron7 action !as co))enced b% the plaintiff, but rather because the
plaintiff havin7 been unable to sho! co,o!nership ri7hts in hi)self, no basis e<ists for
re3uirin7 the defendants to sub)it to partition the propert% at sta=e. If, upon the other
hand, the court after trial should find the eidstence of co,o!nership a)on7 the parties
liti7ant, the court )a% and should order the partition of the propert% in the sa)e action.
$ud7)ent for one or the other part% bein7 on the )erits, the losin7 part% 1respondents
in this case6 )a% then appeal the sa)e. In either case, ho!ever, it is 3uite
unnecessar% to re3uire the plaintiff to file another action, separate and independent
fro) that for partition ori7inall% instituted. 5unctionall%, an action for partition )a% be
seen to be at once an action for declaration of coo!nership and for se7re7ation and
conve%ance of a deter)inate portion of the propert% involved. This is the i)port of our
urisprudence on the )atter.
1(
and is sustained b% the public polic% !hich abhors
)ultiplicit% of actions.
The 3uestion of prescription also needs to be addressed in this connection. It is
so)eti)es said that 2the action for partition of the thin7 o!ned in co))on 1a!tio
!ommuni dividendo or a!tio familiae er!is!undae" does not prescribe.2
13
This
state)ent bears so)e refine)ent. In the !ords of *rticle 0&0 of the +ivil +ode, 2each
co,o!ner )a% de)and at an% ti)e the partition of the thin7 o!ned in co))on, insofar
as his share is conce)ed.2 No )atter ho! lon7 the co,o!nership has lasted, a co,
o!ner can al!a%s opt out of the co,o!nership, and provided the defendant co,o!ners
or co,heirs have theretofore e<pressl% or i)pliedl% reco7niAed the co,o!nership, the%
cannot set up as a defense the prescription of the action for partition. 8ut if the
defendants sho! that the% had previousl% asserted title in the)selves adversel% to the
plaintiff and for the re3uisite period of ti)e, the plaintiffs ri7ht to re3uire reco7nition of
his status as a co,o!ner !ill have been lost b% prescription and the court cannot issue
an order re3uirin7 partition. This is precisel% !hat happened in Jardin v. #allasgo ##B
S+R* :"/ 1#&'/6, !hich the respondent appellate court cited to support its position
3uoted above.
The case of Jardin involved, a)on7 others, t!o 1/6 parcels of land !hich !ere
inherited in #&/. b% the brothers +atalino ardin and -alo $ardin to7ether !ith their
half,brother, Si<to Hallas7o. The three 1"6 held these lands in co,o!nership until Si<to
later 1the date !as not specified6 repudiated the coo!nership and occupied and
possessed both parcels of land, clai)in7 the sa)e e<clusivel% as his o!n. So)eti)e
in #&B", the heirs of +atalino and -alo instituted an action for partition of the t!o 1/6
properties a7ainst Si<toDs heirs, !ho had refused to surrender an% portion of the sa)e
to the for)er. The trial court, assu)in7 that prescription had started to run in that case
even before the +ivil +ode too= effect, held that the action for partition filed b% the
heirs of +atalino and -alo had alread% prescribed. On appeal, this +ourt affir)ed the
trial court on this point in the follo!in7 ter)s>
*rticle 0&0 of the +ivil +ode provides that 2no co,o!ner shall be
obli7ed to re)ain in the co, o!nership2 and that 2each co,o!ner
)a% de)and at an% ti)e the partition of the thin7 o!ned in co))on,
insofar as his share is concerned.2 It also provides that Dno
prescription shall run in favor of a co,o!ner or co,heir a7ainst his co,
o!ners or co,heirs so lon7 as he e<pressl% or i)pliedl% reco7niAes
the co,o!nership.
Ghile the action for the partition of the thin7 o!ned in co))on
1a!tio !ommuni dividendo or a!tio familiae er!is!undae" does not
prescribe, the co,o!nership does not last forever since it )a% be
repudiated b% a co,o!ner Ei.e., Si<toF. $n su!h a !ase the a!tion for
partition does not lie. %hat may be brought by the aggrieved !o&
owner 'i.e. the heirs of Catalino and (alo) is an a!!ion
reivindi!atoria or a!tion for re!overy of title and possession. That
action )a% be barred b% prescription.
If the co,heir or co,o!ner havin7 possession of the hereditar% or
co))unit% propert%, holds the sa)e in his o!n na)e, that is, under
clai) of e<clusive o!nership, he )a% ac3uire the propert% b%
prescription if his possession )eets all the other re3uire)ents of the
la!, and after the e<piration of the prescriptive period, his co,heir or
co,o!ner )a% lose their ri7ht to de)and partition, and their action
)a% then be held to have prescribed 1De los Santos vs. Santa
Teresa, 00 Phil. '##6.
<<< <<< <<<
14)phasis supplied6
3
In the li7ht of the fore7oin7 discussion, it !ill be seen that the underscored portion of
the +ourtDs opinion in Jardin is actuall% obiter. 5or there, the +ourt si)pl% held the
action for partition b% the heirs of +atalino and -alo had prescribed and did not re3uire
such heirs to start a ne! action 1!hich !ould have been 3uite pointless6H on the other
hand, the +ourt re)anded the case to the lo!er court for further proceedin7s in
respect of the recover% of a ":. s3uare )eter lot !hich the evidence sho!ed !as
o!ned b% the plaintiffs but !ron7full% included b% Si<to in the cadastral surve% of his
share of the adoinin7 lot.
In Jardin, the clai) of co,o!nership asserted b% the heirs of +atalino and -alo !as
effectivel% refuted b% the heirs of Si<to, !ho not onl% clai)ed for the)selves absolute
and e<clusive o!nership of the disputed properties but !ere also in actual and adverse
possesion thereof for a substantial len7th of ti)e. The +ourt found, further, that the
action for partition initiall% available to the heirs of +atalino and -alo had, as a result of
the precedin7 circu)stance, alread% prescribed.
*n entirel% different situation, ho!ever, obtains in the case at bar. 5irst of all, petitioner
+oncepcion Ro3ue,the co,o!ner see=in7 partition I has been and is presentl% in
open and continuous possession of a three,fourths 1"?06 portion of the propert% o!ned
in co))on. The +ourt notes in this respect the findin7 of the trial court that petitioner,
follo!in7 e<ecution of the 28ilihan 9ubos at Pattllu%an2 on /B Nove)ber #&(#, had
been in 2!ontinuous o!!upan!y of the "?0 portion of the lot ... up to the present, and
!hereon plaintifrs house and that of her son are erected. 2
1)
Respondents do not
dispute this findin7 of fact, althou7h the% !ould clai) that petitionerDs possession is
)erel% tolerated b% the). Second, prior to filin7 in #&BB of the +o)plaint in +ivil +ase
No. :/"(,M, neither of the parties involved had asserted or manifested a !laim of
absolute and e*!lusive ownership over the whole of Lot +o. ,-./ adverse to that of
any of the other !o&owners> in other !ords, !o&ownership of the property had
!ontinued to be re!ognized by all the owners. +onse3uentl%, the action for partition
could not have and, as a )atter of fact, had not %et prescribed at the ti)e of institution
b% +oncepcion of the action belo!.
/. +o)in7 no! to the )atter re7ardin7 dis)issal of the respondentsDappeal, the
Inter)ediate *ppellate +ourt held that inas)uch as the attac= on the validit% of the
28ilihan 9ubos at Patulu%an2 !as predicated on fraud and no action for annul)ent of
the docu)ent had been brou7ht b% respondents !ithin the four 106 %ear prescriptive
period provided under *rticle #"&# of the +ivil +ode, such action had alread%
prescribed.
Ge find it unnecessar% to deal here !ith the issue of prescription discussed b% the
respondent court in its assailed decision. The facts on record clearl% sho! that
petitioner +oncepcion Ro3ue had been in actual, open and continuous possession of a
three,fourths 1"?06 portion of 9ot No. #:0& ever since e<ecution of the 28ilihan 9ubos at
Patulu%an2 in Nove)ber of #&(#. The +ourt notes that it !as onl% in their *ns!er !ith
+o)pulsor% +ounterclai) filed !ith the trial court in Dece)ber of #&BB I )ore than
si<teen 1#(6 %ears later I that respondents first 3uestioned the 7enuineness and
authenticit% of the 28ilihan 9ubos at Patulu%an.2 Not once durin7 those si<teen 1#(6
%ears did respondents contest petitionerDs occupation of a three,fourths 1"?06 portion of
9ot No. #:0&. 5urther)ore, if indeed it is true that respondents, as the% clai), are the
absolute o!ners of the !hole of 9ot No. #:0&, it is )ost unusual that respondents
!ould have allo!ed or tolerated such prolon7ed occupation b% petitioner of a )aor
portion 1"?06 of the land !hile the%, upon the other hand, contented the)selves !ith
occupation of onl% a fourth thereof. This latter circu)stance, coupled !ith the passa7e
of a ver% substantial len7th of ti)e durin7 !hich petitioner all the !hile re)ained
undisturbed and uninterrupted in her occupation and possession, places respondents
here in laches> respondents )a% no lon7er dispute the e<istence of the co,o!nership
bet!een petitioner and the)selves nor the validit% of petitionerDs clai) of a
threefourths 1"?06 interest in 9ot No. #:0&, as the% are dee)ed, b% their unreasonabl%
lon7 inaction, to have ac3uiesced in the coo!,aership.
15
In this respect, !e affir) the
decision of the respondent appellate court presentl% under revie!.
GH4R45OR4, the Decision of the Inter)ediate *ppellate +ourt dated "# $ul% #&'( in
*.+.,-.R. +V No. .//0' is S4T *SID4 !ith respect to that portion !hich orders the
dis)issal of the +o)plaint in +ivil +ase No. :/"(,M, but is *55IRM4D !ith respect to
that portion !hich orders the dis)issal of the respondentsDappeal in *.+.,-.R. +V No.
.//0'. The Decision of 8ranch & of the Re7ional Trial +ourt of Malolos dated /B $une
#&'" in +ivil +ase No. :/"(,M is hereb% R4INST*T4D. No pronounce)ent as to
costs.
SO ORD4R4D.
4