ARNELITO ADLAWAN, G.R. No.

161916
Petitioner,
Present:
Panganiban, C.J. (Chairman),
- versus - Ynares-Santiago,
Austria-Martinez,
Callejo, Sr., and
Chico-Nazario, JJ.
EMETERIO M. ADLAWAN and
NARCISA M. ADLAWAN, Promulgated:
Respondents.
January 20, 2006

x ---------------------------------------------------------------------------------------- x

DECISION

YNARES-SANTIAGO, J.:

Assailed in this petition for review is the September 23, 2003 Decision[1] of the Court
of Appeals in CA-G.R. SP No. 74921 which set aside the September 13, 2002
Decision[2]of the Regional Trial Court (RTC) of Cebu City, Branch 7, in Civil Case
No. CEB-27806, and reinstated the February 12, 2002 Judgment[3] of the Municipal
Trial Court (MTC) of Minglanilla, Metro Cebu, in Civil Case No. 392, dismissing
petitioner Arnelito Adlawans unlawful detainer suit against respondents Emeterio
and Narcisa Adlawan. Likewise questioned is the January 8, 2004 Resolution[4] of
the Court of Appeals which denied petitioners motion for reconsideration.

The instant ejectment suit stemmed from the parties dispute over Lot 7226 and the
house built thereon, covered by Transfer Certificate of Title No. 8842,[5] registered
in the name of the late Dominador Adlawan and located at Barrio Lipata,
Municipality of Minglanilla, Cebu. In his complaint, petitioner claimed that he is an
acknowledged illegitimate child[6] of Dominador who died on May 28, 1987 without
any other issue. Claiming to be the sole heir of Dominador, he executed an
affidavit adjudicating to himself Lot 7226 and the house built thereon.[7] Out of
respect and generosity to respondents who are the siblings of his father, he granted
their plea to occupy the subject property provided they would vacate the same should
his need for the property arise. Sometime in January 1999, he verbally requested
respondents to vacate the house and lot, but they refused and filed instead an action
for quieting of title[8] with the RTC. Finally, upon respondents refusal to heed the
last demand letter to vacate dated August 2, 2000, petitioner filed the instant case on
August 9, 2000.[9]

On the other hand, respondents Narcisa and Emeterio, 70 and 59 years of age,
respectively,[10] denied that they begged petitioner to allow them to stay on the
questioned property and stressed that they have been occupying Lot 7226 and the
house standing thereon since birth. They alleged that Lot 7226 was originally
registered in the name of their deceased father, Ramon Adlawan[11] and the ancestral
house standing thereon was owned by Ramon and their mother, Oligia Maacap
Adlawan. The spouses had nine[12]children including the late Dominador and herein
surviving respondents Emeterio and Narcisa. During the lifetime of their parents and
deceased siblings, all of them lived on the said property. Dominador and his wife,
Graciana Ramas Adlawan, who died without issue, also occupied the
same.[13] Petitioner, on the other hand, is a stranger who never had possession of Lot
7226.

Sometime in 1961, spouses Ramon and Oligia needed money to finance the
renovation of their house. Since they were not qualified to obtain a loan, they
transferred ownership of Lot 7226 in the name of their son Dominador who was the
only one in the family who had a college education. By virtue of a January 31, 1962
simulated deed of sale,[14] a title was issued to Dominador which enabled him to
secure a loan with Lot 7226 as collateral. Notwithstanding the execution of the
simulated deed, Dominador, then single, never disputed his parents ownership of the
lot. He and his wife, Graciana, did not disturb respondents possession of the property
until they died on May 28, 1987 and May 6, 1997, respectively.

Respondents also contended that Dominadors signature at the back of petitioners

birth certificate was forged, hence, the latter is not an heir of Dominador and has no
right to claim ownership of Lot 7226.[15] They argued that even if petitioner is indeed
Dominadors acknowledged illegitimate son, his right to succeed is doubtful because
Dominador was survived by his wife, Graciana.[16]
On February 12, 2002, the MTC dismissed the complaint holding that the
establishment of petitioners filiation and the settlement of the estate of Dominador
are conditions precedent to the accrual of petitioners action for ejectment. It added
that since Dominador was survived by his wife, Graciana, who died 10 years
thereafter, her legal heirs are also entitled to their share in Lot 7226. The dispositive
portion thereof, reads:

In View of the foregoing, for failure to prove by preponderance of

evidence, the plaintiffs cause of action, the above-entitled case is hereby
Ordered DISMISSED.

SO ORDERED.[17]

On appeal by petitioner, the RTC reversed the decision of the MTC holding
that the title of Dominador over Lot 7226 cannot be collaterally attacked. It thus
ordered respondents to turn over possession of the controverted lot to petitioner and
to pay compensation for the use and occupation of the premises. The decretal portion
thereof, provides:

Wherefore, the Judgment, dated February 12, 2002, of the

Municipal Trial Court of Minglanilla, Cebu, in Civil Case No. 392, is
reversed. Defendants-appellees are directed to restore to plaintiff-
appellant possession of Lot 7226 and the house thereon, and to pay
plaintiff-appellant, beginning in August 2000, compensation for their use
and occupation of the property in the amount of P500.00 a month.

So ordered.[18]

Meanwhile, the RTC granted petitioners motion for execution pending

appeal[19] which was opposed by the alleged nephew and nieces of Graciana in their
motion for leave to intervene and to file an answer in intervention.[20] They
contended that as heirs of Graciana, they have a share in Lot 7226 and that
intervention is necessary to protect their right over the property. In addition, they
declared that as co-owners of the property, they are allowing respondents to stay in
Lot 7226 until a formal partition of the property is made.
 The RTC denied the motion for leave to intervene.[21] It, however, recalled the
order granting the execution pending appeal having lost jurisdiction over the case in
view of the petition filed by respondents with the Court of Appeals.[22]

On September 23, 2003, the Court of Appeals set aside the decision of the
RTC and reinstated the judgment of the MTC. It ratiocinated that petitioner and the
heirs of Graciana are co-owners of Lot 7226. As such, petitioner cannot eject
respondents from the property via an unlawful detainer suit filed in his own name
and as the sole owner of the property. Thus

WHEEFORE, premises considered, the appealed Decision dated

September 13, 2002 of the Regional Trial Court of Cebu City, Branch 7,
in Civil Case No. CEB-27806 is REVERSED and SET ASIDE, and the
Judgment dated February 12, 2002 of the Municipal Trial Court of
Minglanilla, Metro Cebu, in Civil Case No. 392 is REINSTATED. Costs
against the respondent.

SO ORDERED.[23]

Petitioners motion for reconsideration was denied. Hence, the instant petition.

The decisive issue to be resolved is whether or not petitioner can validly

maintain the instant case for ejectment.

Petitioner averred that he is an acknowledged illegitimate son and the sole heir
of Dominador. He in fact executed an affidavit adjudicating to himself the
controverted property. In ruling for the petitioner, the RTC held that the questioned
January 31, 1962 deed of sale validly transferred title to Dominador and that
petitioner is his acknowledged illegitimate son who inherited ownership of the
questioned lot. The Court notes, however, that the RTC lost sight of the fact that the
theory of succession invoked by petitioner would end up proving that he is not the
sole owner of Lot 7226. This is so because Dominador was survived not only by
petitioner but also by his legal wife, Graciana, who died 10 years after the demise of
Dominador on May 28, 1987.[24] By intestate succession, Graciana and petitioner
became co-owners of Lot 7226.[25] The death of Graciana on May 6, 1997, did not
make petitioner the absolute owner of Lot 7226 because the share of Graciana passed
to her relatives by consanguinity and not to petitioner with whom she had no blood
relations. The Court of Appeals thus correctly held that petitioner has no authority
to institute the instant action as the sole owner of Lot 7226.

Petitioner contends that even granting that he has co-owners over Lot 7226,
he can on his own file the instant case pursuant to Article 487 of the Civil Code
which provides:

ART. 487. Any one of the co-owners may bring an action in

ejectment.

This article covers all kinds of actions for the recovery of possession. Article
487 includes forcible entry and unlawful detainer (accion interdictal), recovery of
possession (accion publiciana), and recovery of ownership (accion de
reivindicacion).[26] A co-owner may bring such an action without the necessity of
joining all the other co-owners as co-plaintiffs because the suit is presumed to have
been filed to benefit his co-owners. It should be stressed, however, that where the
suit is for the benefit of the plaintiff alone who claims to be the sole owner and
entitled to the possession of the litigated property, the action should be dismissed.[27]

The renowned civilist, Professor Arturo M. Tolentino, explained

A co-owner may bring such an action, without the necessity of joining all
the other co-owners as co-plaintiffs, because the suit is deemed to be
instituted for the benefit of all. If the action is for the benefit of the
plaintiff alone, such that he claims possession for himself and not for
the co-ownership, the action will not prosper. (Emphasis added)[28]

In Baloloy v. Hular,[29] respondent filed a complaint for quieting of title

claiming exclusive ownership of the property, but the evidence showed that
respondent has co-owners over the property. In dismissing the complaint for want of
respondents authority to file the case, the Court held that
Under Article 487 of the New Civil Code, any of the co-owners
may bring an action in ejectment. This article covers all kinds of actions
for the recovery of possession, including anaccion publiciana and a
reinvidicatory action. A co-owner may bring such an action without the
necessity of joining all the other co-owners as co-plaintiffs because the
suit is deemed to be instituted for the benefit of all. Any judgment of the
 court in favor of the co-owner will benefit the others but if such judgment
is adverse, the same cannot prejudice the rights of the unimpleaded co-
owners. If the action is for the benefit of the plaintiff alone who claims to
be the sole owner and entitled to the possession thereof, the action will not
prosper unless he impleads the other co-owners who are indispensable
parties.

In this case, the respondent alone filed the complaint, claiming sole
ownership over the subject property and praying that he be declared the
sole owner thereof. There is no proof that the other co-owners had waived
their rights over the subject property or conveyed the same to the
respondent or such co-owners were aware of the case in the trial court.
The trial court rendered judgment declaring the respondent as the sole
owner of the property and entitled to its possession, to the prejudice of the
latters siblings. Patently then, the decision of the trial court is erroneous.

Under Section 7, Rule 3 of the Rules of Court, the respondent was

mandated to implead his siblings, being co-owners of the property, as
parties. The respondent failed to comply with the rule. It must, likewise,
be stressed that the Republic of the Philippines is also an indispensable
party as defendant because the respondent sought the nullification of OCT
No. P-16540 which was issued based on Free Patent No. 384019. Unless
the State is impleaded as party-defendant, any decision of the Court would
not be binding on it. It has been held that the absence of an indispensable
party in a case renders ineffective all the proceedings subsequent to the
filing of the complaint including the judgment. The absence of the
respondents siblings, as parties, rendered all proceedings subsequent to
the filing thereof, including the judgment of the court, ineffective for want
of authority to act, not only as to the absent parties but even as to those
present.[30]

In the instant case, it is not disputed that petitioner brought the suit for
unlawful detainer in his name alone and for his own benefit to the exclusion of the
heirs of Graciana as he even executed an affidavit of self- adjudication over the
disputed property. It is clear therefore that petitioner cannot validly maintain the
instant action considering that he does not recognize the co-ownership that
necessarily flows from his theory of succession to the property of his father,
Dominador.
 In the same vein, there is no merit in petitioners claim that he has the legal
personality to file the present unlawful detainer suit because the ejectment of
respondents would benefit not only him but also his alleged co-owners. However,
petitioner forgets that he filed the instant case to acquire possession of the property
and to recover damages. If granted, he alone will gain possession of the lot and
benefit from the proceeds of the award of damages to the exclusion of the heirs of
Graciana. Hence, petitioner cannot successfully capitalize on the alleged benefit to
his co-owners. Incidentally, it should be pointed out that in default of the said heirs
of Graciana, whom petitioner labeled as fictitious heirs, the State will inherit her
share[31] and will thus be petitioners co-owner entitled to possession and enjoyment
of the property.

The present controversy should be differentiated from the cases where the
Court upheld the right of a co-owner to file a suit pursuant to Article 487 of the Civil
Code. InResuena v. Court of Appeals,[32] and Sering v. Plazo,[33] the co-owners who
filed the ejectment case did not represent themselves as the exclusive owner of the
property. InCelino v. Heirs of Alejo and Teresa Santiago,[34] the complaint for
quieting of title was brought in behalf of the co-owners precisely to recover lots
owned in common.[35]Similarly in Vencilao v. Camarenta,[36] the amended
complaint specified that the plaintiff is one of the heirs who co-owns the
controverted properties.

In the foregoing cases, the plaintiff never disputed the existence of a co-
ownership nor claimed to be the sole or exclusive owner of the litigated lot. A
favorable decision therein would of course inure to the benefit not only of the
plaintiff but to his co-owners as well. The instant case, however, presents an entirely
different backdrop as petitioner vigorously asserted absolute and sole ownership of
the questioned lot. In his complaint, petitioner made the following allegations, to
wit:

3. The plaintiff was the only son (illegitimate) and sole heir of the
late DOMINADOR ADLAWAN who died intestate on 28 May 1987
without any other descendant nor ascendant x x x.

xxxx
 5. Being the only child/descendant and, therefore, sole heir of the
deceased Dominador Adlawan, the plaintiff became the absolute
owner, and automatically took POSSESSION, of the aforementioned
house and lot x x x. (Emphasis added)[37]

Clearly, the said cases find no application here because petitioners action
operates as a complete repudiation of the existence of co-ownership and not in
representation or recognition thereof. Dismissal of the complaint is therefore proper.
As noted by Former Supreme Court Associate Justice Edgrado L. Paras [i]t is
understood, of course, that the action [under Article 487 of the Civil Code] is being
instituted for all. Hence, if the co-owner expressly states that he is bringing the case
only for himself, the action should not be allowed to prosper.[38]

Indeed, respondents not less than four decade actual physical possession of
the questioned ancestral house and lot deserves to be respected especially so that
petitioner failed to show that he has the requisite personality and authority as co-
owner to file the instant case. Justice dictates that respondents who are now in the
twilight years of their life be granted possession of their ancestral property where
their parents and siblings lived during their lifetime, and where they, will probably
spend the remaining days of their life.

WHEREFORE, the petition is DENIED. The September 23, 2003 Decision

of the Court of Appeals in CA-G.R. SP No. 74921 which reinstated the February 12,
2002 Judgment of the Municipal Trial Court of Minglanilla, Metro Cebu, dismissing
petitioners complaint in Civil Case No. 392, and its January 8, 2004 Resolution,
are AFFIRMED.

SO ORDERED.
GRACE GOSIENGFIAO GUILLEN, deceased EMMA G. R. No.
GOSIENGFIAO GALAOS, represented by her daughter 159755
EMELYN GALAOS-MELARION, deceased FRANCISCO
GOSIENGFIAO, JR., represented
by his widow EDELWISA
Present:
GOSIENGFIAO, JACINTOGOSIENGFIAO, and absenteesES
TER GOSIENGFIAO BITONIO, NORMA QUISUMBING, J.,
GOSIENGFIAO, and PINKY BUENO PEDROSO, Chairperson,
represented by their attorney-in-
*
factJACINTO GOSIENGFIAO, YNARES-
Petitioners, SANTIAGO,
**
CHICO-
NAZARIO,
***
LEONARD
- versus -
O-DE
CASTRO,
and

THE COURT OF APPEALS, HON. JIMMY HENRY F. LUCZON, JR., in BRION, JJ.
his capacity as Presiding Judge of the Regional Trial Court, Branch
I, Tuguegarao, Cagayan, LEONARDO
MARIANO, AVELINA TIGUE, LAZARO MARIANO, MERCEDES SAN
Promulgate
PEDRO, DIONISIA M. AQUINO, and JOSE N.T. AQUINO,
d:
Respondents.

June 18,
2009

x---------------------------------------------------------------------------------------- x

DECISION
 BRION, J.:

At issue in this petition is the timeliness of the exercise of the right of legal
redemption that this Court has recognized in a final and executory decision.

The petitioners, heirs of Francisco Gosiengfiao (petitioner-heirs), assail in this

Rule 45 petition for review on certiorari the January 17, 2003 decision
and September 9, 2003 resolution of the Court of Appeals (CA) in CA-G.R. CV No.
63093.[1] The assailed CA decision ruled that the thirty-day period for the exercise
of the right of legal redemption should be counted, not from the notice of sale by
the vendor but, from the finality of the judgment of this Court.

BACKGROUND FACTS

I. G.R. No. 101522 - Mariano v. Court of Appeals

The previous case where we recognized the petitioner-heirs right of legal

redemption is Mariano v. CA.[2] To quote, by way of background, the factual
antecedents thatMariano recognized:

It appears on record that the decedent Francisco Gosiengfiao is the registered

owner of a residential lot located at Ugac Sur, Tuguegarao, Cagayan, particularly
described as follows, to wit:

The eastern portion of Lot 1351, Tuguegarao Cadastre, and after its
segregation now designated as Lot 1351-A, Plan PSD-67391, with an area
of 1,346 square meters.

and covered by Transfer Certificate of Title (TCT) No. T-2416 recorded in the Register of
Deeds of Cagayan.
 The lot in question was mortgaged by the decedent to the Rural Bank of
Tuguegarao (designated as mortgagee bank, for brevity) on several occasions before the
last, being on March 9, 1956 and January 29, 1958.

On August 15, 1958, Francisco Gosiengfiao died intestate survived by his heirs,
namely: Third-Party Defendants: wife Antonia and Children Amparo, Carlos, Severino and
herein plaintiffs-appellants Grace, Emma, Ester, Francisco, Jr., Norma, Lina (represented
by daughter Pinky Rose), and Jacinto.

The loan being unpaid, the lot in dispute was foreclosed by the mortgagee bank,
and in the foreclosure sale held on December 27, 1963, the same was awarded to the
mortgagee bank as the highest bidder.

On February 7, 1964, third-party defendant Amparo Gosiengfiao-Ibarra

redeemed the property by paying the amount of P1,347.89 and the balance of P423.35
was paid on December 28, 1964 to the mortgagee bank.

On September 10, 1965, Antonia Gosiengfiao on her behalf and that of her minor
children Emma, Lina, Norma, together with Carlos and Severino, executed a Deed of
Assignment of the Right of Redemption in favor of Amparo G. Ibarra appearing in the
notarial register of Pedro (Laggui) as Doc. No. 257, Page No. 6, Book No. 8, Series of 1965.

On August 15, 1966, Amparo Gosiengfiao sold the entire property to defendant
Leonardo Mariano who subsequently established residence on the lot subject of this
controversy. It appears in the Deed of Sale dated August 15, 1966 that Amparo, Antonia,
Carlos and Severino were signatories thereto.

Sometime in 1982, plaintiff-appellant Grace Gosiengfiao learned of the sale of

said property by the third-party defendants. She went to the Barangay Captain and asked
for a confrontation with defendants Leonardo and Avelina Mariano to present her claim
to the said property.

On November 27, 1982, no settlement having been reached by the parties, the
Barangay Captain issued a certificate to file action.

On December 8, 1982, defendant Leonardo Mariano sold the same property to his
 children Lazaro F. Mariano and Dionicia M. Aquino as evidenced by a Deed of Sale
notarized by Hilarion L. Aquino as Doc. No. 143, Page No. 19, Book No. V, Series of 1982.

On December 21, 1982, plaintiffs Grace Gosiengfiao, et al. [herein petitioner-

heirs] filed a complaint for recovery of possession and legal redemption with damages
against defendants Leonardo and Avelina Mariano [herein respondent-buyers]. Plaintiffs
alleged in their complaint that as co-heirs and co-owners of the lot in question, they have
the right to recover their respective shares in the said property as they did not sell the
same, and the right of redemption with regard to the shares of other co-owners sold to
the defendants.

Defendants in their answer alleged that the plaintiffs has [sic] no cause of action
against them as the money used to redeem the lot in question was solely from the
personal funds of third-party defendant Amparo Gosiengfiao-Ibarra, who consequently
became the sole owner of the said property and thus validly sold the entire property to
the defendants, and the fact that defendants had already sold the said property to their
children, Lazaro Mariano and Dionicia M. Aquino. Defendants further contend that even
granting that the plaintiffs are co-owners with the third-party defendants, their right of
redemption had already been barred by the Statute of Limitations under Article 1144 of
the Civil Code, if not by laches.

On September 16, 1986, the trial court dismissed the complaint before it, as
only Amparo redeemed the property from the bank using her money and solely in
her behalf so that the petitioner-heirs had lost all their rights to the property.[3] The
trial court explained that what Gosiengfiaos heirs inherited from him was only the
right to redeem the property, as it was then already owned by the bank. By
redeeming the property herself, Amparo became the sole owner of the property,
and the lot ceased to be a part of Gosiengfiaos estate.

On May 13, 1991, the CA reversed the trial courts decision, declaring the
petitioner-heirs co-owners of the property who may redeem the portions sold to
the respondent-buyers. The CA denied the respondent-buyers motion for
reconsideration;[4] thus, they came to this Court to question the CAs rulings.

Our Decision, promulgated on May 28, 1993, affirmed the appellate court
decision.[5] It stated in its penultimate paragraph and in its dispositive portion that:
 Premises considered, respondents have not lost their right to redeem, for in the
absence of a written notification of the sale by the vendors, the 30-day period has not
begun to run.

WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED. Costs

against petitioners.

Aside from this express declaration, the Court explained that, as the property was
mortgaged by the decedent, co-ownership existed among his heirs during the
period given by law to redeem the foreclosed property. Redemption of the whole
property by co-owner Amparo did not vest in her the sole ownership over the
property, as the redemption inured to the benefit of all co-owners; redemption will
not put an end to co-ownership, as it is not a mode of terminating a co-
ownership. The Court also distinguished[6] between Articles 1088[7] and 1620[8] of
the Civil Code and ruled as inapplicable the doctrine that the giving of a copy of the
deed of sale to the co-heirs as equivalent to a notice.[9] OnJuly 12, 1993, this Court
denied the respondent-buyers motion for reconsideration. The entry of judgment
was made on August 2, 1993.
II. Execution of the Mariano Decision
(G.R. No. 101522) By the Lower Court

a. The Incidents

On April 26, 1994, the petitioner-heirs, as winning parties, filed a motion for
the execution of our Decision in G.R. No. 101522, which motion the trial
court granted onMay 11, 1994.[10] The next day, the clerk of court issued a writ of
execution and a notice to vacate.[11] The respondent-buyers moved for a
reconsideration of the May 11, 1994 order and prayed for the nullification of the
notice to vacate, arguing that the dispositive portion of the decision to be executed
merely declared and recognized the petitioner-heirs as co-owners of the lot and
did not authorize the sheriff to remove their houses from the land. They argued
they can remain in possession of the property as co-owners because the judgment
did not divest them of possession.[12] The sheriff later informed the trial court that
copies of the notice to vacate and the writ of execution were served on, but were
not signed by, the respondent-buyers. After the expiration of the 45-day period to
vacate, the sheriff went back to check if the respondent-buyers had complied. They
had not.

On March 31, 1995, the petitioner-heirs filed a notice of redemption with the
court of origin, duly served on the respondent-buyers, for the shares of Amparo,
Antonia, Carlos, and Severino, and tendered the redemption price
of P53,760.[13] On April 18, 1995, the sheriff issued a certificate of redemption after
the first and second buyers refused to sign the notice and accept the tender, and
after the aggrieved heirs deposited the redemption money with the court.[14] On
the same date, the sheriff issued a return of service informing the court that
on March 31, 1995, the redemption money was tendered to, but was not accepted
by, Engr. Jose Aquino who received, but did not sign, the notice of redemption.[15]

From 1994 to 1995, the respondent-buyers filed four motions: a motion for
reconsideration of the May 11, 1994 order granting the motion for the issuance of
a writ of execution;[16] a motion to ascertain the redemptive shares of third-party
defendants;[17] a motion to declare the petitioner-heirs to have lost their right of
legal redemption;[18]and a motion to expunge from the records the petitioner-heirs
notice of redemption.[19]

b. The Judge Beltran Rulings

On December 4, 1995, the trial court, through Judge Orlando

Beltran,[20] issued an order (1) recalling the writ of execution for incorrectly quoting
the dispositive portion of the CA decision and nullifying the notice to vacate; (2)
denying the motion to ascertain third-party defendants shares, as Amparos
redemption inured to the benefit of her co-heirs, thus, each of the 10 heirs has 1/10
equal share of the lot; (3) denying the third motion as no written notice of the sale
has been served on the petitioner-heirs by the vendor or by the vendee; and (4)
denying the last motion for lack of legal and factual basis.[21] The trial court
thereafter denied the respondent-buyers motion for reconsideration that
followed.[22]

On May 30, 1996, the court denied their motion to nullify the certificate of
redemption and cancellation of the certificate at the back of TCT No. T-2416; the
respondent-buyers moved to reconsider this denial on July 9, 1996.[23]

On June 11, 1996, the respondent-buyers filed an omnibus motion for

reconsideration, arguing that the December 4, 1995 order is contrary to law,
jurisprudence, and the decisions of the CA and this Court on this case.[24]

On July 15, 1996, the respondent-buyers again filed a motion for

reconsideration of the May 30, 1996 order denying their motion to nullify the
certificate of redemption and to order its cancellation at the back of TCT No. T-
2416, which move the petitioner-heirs opposed. They argued that the decision of
this Court was not self-executing, and the sheriff had no power to do anything
without a court sanction. They also argued that it was untrue that the basis of
the April 18, 1995 certificate of redemption was the May 31, 1991 decision of the
CA, as affirmed by this Court, because the certificate was inexistent when those
decisions were promulgated.

c. The Judge Luczon Rulings

On September 26, 1997, the trial court, through Judge Jimmy Henry F.
Luczon, Jr.,[25] issued an order granting the respondent-buyers omnibus motion for
reconsideration of the December 4, 1995 order, declaring the petitioner-heirs to
have lost their right of redemption, and nullifying the notice and the certificate of
redemption.[26] Noting the absence of a written notice of sale or manifestation
received by the petitioner-heirs, the trial court deemed as notice of sale this Courts
decision which became final and executory on August 2, 1993. The trial court
considered September 1, 1993 as the last day of the redemption period, and,
consequently, declared that the notice and the certificate of redemption were filed
late.

The trial court denied the petitioner-heirs motion for reconsideration of the
September 26, 1997 order, ruling that the introduction of the deed of sale as the
parties evidence in the trial and higher courts was sufficient to give the petitioner-
heirs written notice of the sale; and that the Civil Code does not require any
particular form of written notice or distinctive method for written notification of
redemption.

III. The Assailed Court of Appeals Decision

The petitioner-heirs thereupon went to the CA on a petition for certiorari to

question the lower courts orders. (They had earlier filed an Appeal Ad
Cautelam which the CA consolidated with the petition for certiorari.)[27] As
grounds, they cited the lower courts lack of jurisdiction since the motions ruled
upon were really initiatory pleadings based on causes of action independent of,
although related to, Civil Case No. 3129, and that no certificate of non-forum
shopping was attached, nor any docket fees paid. They also claimed that the
respondent-buyers motion was a prohibited second motion for reconsideration
that the lower court could not rule upon, and one that was filed beyond the 15-day
period of appeal.[28] Finally, they faulted the lower court for ignoring the law of the
case, as established in Mariano.

The respondent-buyers questioned the petition on technicalities, but

focused on the issue of whether the final and executory decision of this Court
in Mariano was effectively a written notice of sale to the heirs; they continued to
maintain that the redemption period should run from the finality of our Decision,
and, thus, had already lapsed.
The CA followed the respondent-buyers lead and likewise focused on the
effect of our Decision on the petitioner-heirs redemption of the disputed co-owned
property. To quote the appellate court:
 The pivot of inquiry here is: whether or not the final and executory Decision of
the Supreme Court constitutes written notice to plaintiffs-appellants [herein petitioner-
heirs].

xxx

It is undisputed that the Highest Magistrates Decision in G.R. 101522 had become final
and executory on 02 August 1993 and that it was only on 26 April 1994 or after the lapse
of more than eight (8) months from the finality of the said Decision that plaintiffs-
appellants filed a Motion for Execution.

The Entry of Judgment of G.R. 101522 states as follows, thus:

This is to certify that on May 26, 1993 a decision rendered in the above-
entitled case was filed in this Office, the dispositive portion of which
reads as follows:

Premises considered, respondents have not lost their right to

redeem, for in the absence of a written certification of the sale by the
vendors, the 30-day period has not even begun to run.

WHEREFORE, the decision of the Court of Appeals is hereby

AFFIRMED. Costs against the petitioners.

SO ORDERED.

and that the same has, on August 2, 1993 become final and executory
and is hereby recorded in the book of Entries of Judgment.

As it is an established procedure in court that when an entry of judgment was

issued, it means that the contending parties were already properly notified of the same
either through the parties themselves or through their respective counsels.
 Thus, the very existence of the Supreme Courts Entry of Judgment negates
plaintiffs-appellants claim that no notice of what [sic] nature was received by them insofar
as G.R. 101522 was concerned.

Concomitantly, the Court concurs with the argument of respondents-appellees

[herein respondent-buyers] that the thirty (30) days grace period within which to redeem
the contested property should be counted from 02 August 1993.

As they failed to redeem the same in accordance with the instruction of the High
Court, plaintiffs-appellants lost all the rights and privileges granted to them by the
Supreme Court in G.R. 101522.

From the foregoing facts, it is clear that plaintiffs-appellants had slept from their
rights and their failure to exercise the same within the period allowed by the High Court is
deemed a waiver on their part.

All told, the Court holds and so rules that the court a quo erred not in reversing
itself.

To summarize, the appellate court ruled that (1) because an entry of judgment had
been made, the Mariano Decision is deemed to have been served on the petitioner-
heirs; (2) based on this premise, the appellate court held that the 30-day
redemption period should run from August 2, 1993 (the date of the entry of
judgment); and (3) for the petitioner-heirs failure to redeem within that period,
they lost all the rights and privileges granted to them by the Supreme Court in G.R.
No. 101522.
THE PETITION

Faced with the CAs ruling and the denial of their motion for reconsideration,
the petitioner-heirs filed the present petition with this Court. They argue in this
petition and in their memorandum that the January 17, 2003 decision of the CA is
erroneous for the reasons outlined below.
 First. They clarify that their theory that the Decision of this Court is not the
written notice required by law was not anchored on lack of notice of that decision,
but on Article 1623 of the Civil Code: the written notice should be given by the
vendor, not by this Court by virtue of a final decision. The CA erred and abused its
discretion in concluding that they lost their right of redemption under this Courts
Decision because the start of the redemption period is not reckoned from the date
of the finality of that decision; the Decision is not the source of their right to
redeem.

Second. They posit a redemption period is not a prescriptive period, and the
lower courts erred in considering the 30-day period as an extinctive prescriptive
period because legal redemption under Article 1623 does not prescribe. The period
has not even begun to run. Their use of the services of the sheriff to exercise their
right of redemption through a motion for execution was approved by this Court as
a method of redemption.

In their Comment, the respondent-buyers stress that the main issue in this
petition is whether the petitioner-heirs right of legal redemption, as recognized in
G.R. No. 101522, had been lost. The non-reviewable findings of facts of the trial and
appellate courts that plaintiffs exercised their right of redemption late, and that the
decision in G.R. No. 101522 had already become final, bind this Court.

In their Reply to Comment, the petitioner-heirs argue that the 30-day

redemption period under Article 1623 cannot be reckoned from the date of finality
of this Courts Decision in G.R. No. 101522 because it is not and cannot be a notice
in writing by the vendor; this Court is not the vendor and a written notice by the
vendor is mandatory for the 30-day redemption period to run. The Decision negates
the notion that it serves as a notice, because it clearly states that the period of
redemption had not begun to run. Having previously exercised the right of
redemption, the execution was nothing more than the implementation of what had
been the final ruling of this Court.
In their memorandum, the respondent-buyers maintain that the petitioner-
heirs time-barred right to redeem the property was not cured by the notice of
redemption and by their late tender of the redemption money; since the petitioner-
heirs were exercising their right of legal redemption by virtue of the Decisions of
this Court and the CA, it was incumbent upon them to effectuate the steps of
redemption seasonably. The belated notice of redemption and tender of payment
of redemption price were not bona fide, as they were not made within the required
period.

THE COURTS RULING

The parties positions all focus, and rightly so, on the main issue: when did
the 30-day period to redeem the subject property start? This is a question of law,
not of fact, as the respondent-buyers erroneously claim; thus, the lower courts
findings cannot bind this Court.

The appellate court unfortunately failed to appreciate

the breadth and significance of this issue, simply ruling on the case based on the
implications of an entry of judgment. Because of this myopic view, it completely
missed the thrust and substance of the Mariano Decision.

We grant the petition and hold pursuant to the Mariano Decision and
based on the subsequent pleaded developments that the petitioner-heirs have
effectively exercised their right of redemption and are now the owners of the
redeemed property pursuant to the Sheriffs Certificate of Redemption.

A significant aspect of Mariano that the CA failed to appreciate is our

confirmation of the ruling that a written notice must be served by the
vendor.[29] We ruled as follows:

The requirement of a written notice has long been settled as early as in the case
of Castillo v. Samonte (106 Phil. 1023 [1960]) where this Court quoted the ruling
in Hernaez v. Hernaez(32 Phil. 214), thus:
 Both the letter and spirit of the New Civil Code argue against any
attempt to widen the scope of the notice specified in Article 1088 by
including therein any other kind of notice, such as verbal or by
registration. If the intention of the law had been to include verbal notice
or any other means of information as sufficient to give the effect of this
notice, then there would have been no necessity or reasons to specify in
Article 1088 of the New Civil Code that the said notice be made in writing
for, under the old law, a verbal notice or information was sufficient.

xxx

The ruling in Castillo v. Samonte, supra, was reiterated in the case of Garcia v.
Calaliman (G.R. No. 26855, April 17, 1989, 172 SCRA 201) where We also discussed the
reason for the requirement of the written notice. We said:

Consistent with aforesaid ruling, in the interpretation of a related

provision (Article 1623 of the New Civil Code) this Court had stressed that
written notice is indispensable, actual knowledge of the sale acquired in
some other manners by the redemptioner, notwithstanding. He or she is
still entitled to written notice, as exacted by the code to remove all
uncertainty as to the sale, its terms and its validity, and to quiet any
doubt that the alienation is not definitive. The law not having provided
for any alternative, the method of notifications remains exclusive,
though the Code does not prescribe any particular form of written notice
nor any distinctive method for written notification of redemption
(Conejero et al. v. Court of Appeals et al., 16 SCRA 775 [1966]; Etcuban v.
Court of Appeals, 148 SCRA 507 [1987]; Cabrera v. Villanueva, G.R. No.
75069, April 15, 1988).

We also made the factual finding that:

The records of the present petition, however, show no written notice of the sale
being given whatsoever to private respondents [petitioner-heirs]. Although, petitioners
allege that sometime on October 31, 1982 private respondent, Grace Gosiengfiao was
given a copy of the questioned deed of sale and shown a copy of the document at the
Office of the Barangay Captain sometime November 18, 1982, this was not supported by
the evidence presented. x x x
 From these premises, we ruled that [P]etitioner-heirs have not lost their right
to redeem, for in the absence of a written notification of the sale by the vendors,
the 30-day period has not even begun to run. These premises and conclusion leave
no doubt about the thrust of Mariano: The right of the petitioner-heirs to exercise
their right of legal redemption exists, and the running of the period for its exercise
has not even been triggered because they have not been notified in writing of the
fact of sale. This is what our Decision held, as the penultimate paragraph and the
dispositive portion clearly state. This is the law of the case that should guide all
other proceedings on the case, particularly its execution.[30] For the Luczon ruling
and the CA to miss or misinterpret the clear ruling in Mariano the Decision subject
of the execution is a gross and patent legal error that cannot but lead to the reversal
of their decisions.

In light of this conclusion, we see no need to discuss the other presented

issues. We hold that the computation of the 30-day period to exercise the legal
right of redemption did not start to run from the finality of the Mariano Decision,
and that the petitioner-heirs seasonably filed, via a writ of execution, their notice
of redemption, although they applied for the issuance of the writ some eight (8)
months after the finality of the Decision. In seeking the execution of a final and
executory decision of this Court, what controls is Section 11, Rule 51,[31] in relation
to Section 2, Rule 56,[32] of the Rules of Court. Before the trial court executing the
decision, Section 6, Rule 39,[33] on the question of timeliness of the execution,
governs. Eight (8) months after the finality of the judgment to be executed is still a
seasonable time for execution by motion pursuant to this provision. The writ,
notice of redemption, and the tender of payment were all duly served, so that it
was legally in order for the Sheriff to issue a Certificate of Redemption when the
respondent-buyers failed to comply with the writ and to accept the notice and the
tender of payment.

WHEREFORE, in light of the foregoing, we hereby GRANT the petition and,

accordingly, REVERSE and SET ASIDE the January 17, 2003 decision and September
9, 2003 resolution of the Court of Appeals in CA-G.R. CV No. 63093. The petitioner-
heirs exercise of their right of redemption of co-heirs Amparo G. Ibarra, Antonio
C. Gosiengfiao, Carlos Gosiengfiao, and Severino Gosiengfiaos shares over Lot
1351-A, Plan Psd-67391, covered by Transfer Certificate of Title No. T-2416, and
located in Ugac Sur, Tuguegarao, Cagayan, in view of their March 31, 1995 Notice
of Redemption and the April 18, 1995 Certificate of Redemption issued by the
Sheriff of the Regional Trial Court, Branch IV, Tuguegarao, Cagayan, is hereby
declared VALID and LEGAL.

Costs against the respondents.

SO ORDERED.

.R. No. L-46296 September 24, 1991

EPITACIO DELIMA, PACLANO DELIMA, FIDEL DELIMA, VIRGILIO DELIMA, GALILEO DELIMA,
JR., BIBIANO BACUS, OLIMPIO BACUS and PURIFICACION BACUS, petitioners,
vs.
HON. COURT OF APPEALS, GALILEO DELIMA (deceased), substituted by his legal heirs,
namely: FLAVIANA VDA. DE DELIMA, LILY D. ARIAS, HELEN NIADAS, ANTONIO DELIMA,
DIONISIO DELIMA, IRENEA DELIMA, ESTER DELIMA AND FELY DELIMA, respondents.

Gabriel J. Canete for petitioners.

Emilio Lumontad, Jr. for private respondents.

MEDIALDEA, J.:p

This is a petition for review on certiorari of the decision of the Court of Appeals reversing the trial
court's judgment which declared as null and void the certificate of title in the name of respondents'
predecessor and which ordered the partition of the disputed lot among the parties as co-owners.

The antecedent facts of the case as found both by the respondent appellate court and by the trial
court are as follows:
During his lifetime, Lino Delima acquired Lot No. 7758 of the Talisay-Minglanilla Friar Lands Estate
in Cebu by sale on installments from the government. Lino Delima later died in 1921 leaving as his
only heirs three brothers and a sister namely: Eulalio Delima, Juanita Delima, Galileo Delima and
Vicente Delima. After his death, TCT No. 2744 of the property in question was issued on August 3,
1953 in the name of the Legal Heirs of Lino Delima, deceased, represented by Galileo Delima.

On September 22, 1953, Galileo Delima, now substituted by respondents, executed an affidavit of
"Extra-judicial Declaration of Heirs." Based on this affidavit, TCT No. 2744 was cancelled and TCT
No. 3009 was issued on February 4,1954 in the name of Galileo Delima alone to the exclusion of the
other heirs.

Galileo Delima declared the lot in his name for taxation purposes and paid the taxes thereon from
1954 to 1965.

On February 29, 1968, petitioners, who are the surviving heirs of Eulalio and Juanita Delima, filed
with the Court of First Instance of Cebu (now Regional Trial Court) an action for reconveyance
and/or partition of property and for the annulment of TCT No. 3009 with damages against their
uncles Galileo Delima and Vicente Delima,. Vicente Delima was joined as party defendant by the
petitioners for his refusal to join the latter in their action.

On January 16, 1970, the trial court rendered a decision in favor of petitioners, the dispositive portion
of which states:

IN VIEW OF THE FOREGOING CONSIDERATIONS, the following are the declared

owners of Lot No. 7758 of the Talisay-Minglanilla Friar Lands Estate presently
covered by transfer Certificate of Title No. 3009, each sharing a pro-indiviso share of
one-fourth;

1) Vicente Delima (one-fourth)

2) Heirs of Juanita Delima, namely: Bibiano Bacus, Olimpio Bacus and Purificacion
Bacus (on-fourth);

3) Heirs of Eulalio Delima, namely Epitacio, Pagano, Fidel, Virgilio and Galileo Jr., all
surnamed Delima (one-fourth); and

4) The Heirs of Galileo Delima, namely Flaviana Vda. de Delima, Lily D. Arias, Helen
Niadas and Dionisio, Antonio, Eotu Irenea, and Fely, all surnamed Delima (one-
fourth).

Transfer Certificate of Title No. 3009 is declared null and void and the Register of
Deeds of Cebu is ordered to cancel the same and issue in lieu thereof another title
with the above heirs as pro-indiviso owners.

After the payment of taxes paid by Galileo Delima since 1958, the heirs of Galileo
Delima are ordered to turn a over to the other heirs their respective shares of the
fruits of the lot in question computed at P170.00 per year up to the present time with
legal (interest).
 Within sixty (60) days from receipt of this decision the parties are ordered to petition
the lot in question and the defendants are directed to immediately turn over
possession of the shares here awarded to the respective heirs.

Defendants are condemned to pay the costs of the suit.

The counterclaim is dismissed.

SO ORDERED. (pp. 54-55, Rollo)

Not satisfied with the decision, respondents appealed to the Court of Appeals. On May 19, 1977,
respondent appellate court reversed the trial court's decision and upheld the claim of Galileo Delima
that all the other brothers and sister of Lino Delima, namely Eulalio, Juanita and Vicente, had
already relinquished and waived their rights to the property in his favor, considering that he (Galileo
Delima) alone paid the remaining balance of the purchase price of the lot and the realty taxes
thereon (p. 26, Rollo).

Hence, this petition was filed with the petitioners alleging that the Court of Appeals erred:

1) In not holding that the right of a co-heir to demand partition of inheritance is

imprescriptible. If it does, the defenses of prescription and laches have already been
waived.

2) In disregarding the evidence of the petitioners.(p.13, Rollo)

The issue to be resolved in the instant case is whether or not petitioners' action for partition is
already barred by the statutory period provided by law which shall enable Galileo Delima to perfect
his claim of ownership by acquisitive prescription to the exclusion of petitioners from their shares in
the disputed property. Article 494 of the Civil Code expressly provides:

Art. 494. No co-owner shall be obliged to remain in the co-ownership. Each co-owner
may demand at any time the partition of the thing owned in common, insofar as his
share is concerned.

Nevertheless, an agreement to keep the thing undivided for a certain period of time,
not exceeding ten years, shall be valid. This term may be extended by a new
agreement.

A donor or testator may prohibit partition for a period which shall not exceed twenty
years.

Neither shall there be any partition when it is prohibited by law.

No prescription shall run in favor of a co-owner or co-heir against his co-owners or

co-heirs so long as he expressly or impliedly recognizes the co-ownership.

As a rule, possession by a co-owner will not be presumed to be adverse to the others, but will be
held to benefit all. It is understood that the co-owner or co-heir who is in possession of an
inheritance pro-indiviso for himself and in representation of his co-owners or co-heirs, if, as such
owner, he administers or takes care of the rest thereof with the obligation of delivering it to his co-
owners or co-heirs, is under the same situation as a depository, a lessee or a trustee (Bargayo v.
Camumot, 40 Phil, 857; Segura v. Segura, No. L-29320, September 19, 1988, 165 SCRA 368).
Thus, an action to compel partition may be filed at any time by any of the co-owners against the
actual possessor. In other words, no prescription shall run in favor of a co-owner against his co-
owners or co-heirs so long as he expressly or impliedly recognizes the co-ownership (Del Blanco v.
Intermediate Appellate Court, No. 72694, December 1, 1987, 156 SCRA 55).

However, from the moment one of the co-owners claims that he is the absolute and exclusive owner
of the properties and denies the others any share therein, the question involved is no longer one of
partition but of ownership (De Castro v. Echarri, 20 Phil. 23; Bargayo v. Camumot, supra; De los
Santos v. Santa Teresa, 44 Phil. 811). In such case, the imprescriptibility of the action for partition
can no longer be invoked or applied when one of the co-owners has adversely possessed the
property as exclusive owner for a period sufficient to vest ownership by prescription.

It is settled that possession by a co-owner or co-heir is that of a trustee. In order that such
possession is considered adverse to the cestui que trust amounting to a repudiation of the co-
ownership, the following elements must concur: 1) that the trustee has performed unequivocal acts
amounting to an ouster of the cestui que trust; 2) that such positive acts of repudiation had been
made known to the cestui que trust; and 3) that the evidence thereon should be clear and conclusive
(Valdez v. Olorga, No. L-22571, May 25, 1973, 51 SCRA 71; Pangan v. Court of Appeals, No. L-
39299, October 18, 1988, 166 SCRA 375).

We have held that when a co-owner of the property in question executed a deed of partition and on
the strength thereof obtained the cancellation of the title in the name of their predecessor and the
issuance of a new one wherein he appears as the new owner of the property, thereby in effect
denying or repudiating the ownership of the other co-owners over their shares, the statute of
limitations started to run for the purposes of the action instituted by the latter seeking a declaration of
the existence of the co-ownership and of their rights thereunder (Castillo v. Court of Appeals, No. L-
18046, March 31, 1964, 10 SCRA 549). Since an action for reconveyance of land based on implied
or constructive trust prescribes after ten (10) years, it is from the date of the issuance of such title
that the effective assertion of adverse title for purposes of the statute of limitations is counted
(Jaramil v. Court of Appeals, No. L-31858, August 31, 1977, 78 SCRA 420).

Evidence shows that TCT No. 2744 in the name of the legal heirs of Lino Delima, represented by
Galileo Delima, was cancelled by virtue of an affidavit executed by Galileo Delima and that on
February 4, 1954, Galileo Delima obtained the issuance of a new title in Ms name numbered TCT
No. 3009 to the exclusion of his co-heirs. The issuance of this new title constituted an open and
clear repudiation of the trust or co-ownership, and the lapse of ten (10) years of adverse possession
by Galileo Delima from February 4, 1954 was sufficient to vest title in him by prescription. As the
certificate of title was notice to the whole world of his exclusive title to the land, such rejection was
binding on the other heirs and started as against them the period of prescription. Hence, when
petitioners filed their action for reconveyance and/or to compel partition on February 29, 1968, such
action was already barred by prescription. Whatever claims the other co-heirs could have validly
asserted before can no longer be invoked by them at this time.

ACCORDINGLY, the petition is hereby DENIED and the assailed decision of the Court of Appeals
dated May 19, 1977 is AFFIRMED.
G.R. No. 61584 November 25, 1992

DONATO S. PAULMITAN, JULIANA P. FANESA and RODOLFO FANESA, petitioners,

vs.
COURT OF APPEALS, ALICIO PAULMITAN, ELENA PAULMITAN, ABELINO PAULMITAN,
ANITA PAULMITAN, BAKING PAULMITAN, ADELINA PAULMITAN and ANITO
PAULMITAN, respondents.

ROMERO, J.:

This is a petition for review on certiorari seeking the reversal of the decision 1 of the Court of Appeals,
dated July 14, 1982 in CA-G.R. No. 62255-R entitled "Alicio Paulmitan, et al. v. Donato Sagario
Paulmitan, et al." which affirmed the decision 2 of the then Court of First Instance (now RTC) of Negros
Occidental, 12th Judicial District, Branch IV, Bacolod City, in Civil Case No. 11770.

The antecedent facts are as follows:

Agatona Sagario Paulmitan, who died sometime in 1953, 3 left the two following parcels of land located
in the Province of Negros Occidental: (1) Lot No. 757 with an area of 1,946 square meters covered by
Original Certificate of Title (OCT) No. RO-8376; and (2) Lot No. 1091 with an area of 69,080 square
meters and covered by OCT No. RO-11653. From her marriage with Ciriaco Paulmitan, who is also now
deceased, Agatona begot two legitimate children, namely: Pascual Paulmitan, who also died in
1953, 4 apparently shortly after his mother passed away, and Donato Paulmitan, who is one of the
petitioners. Petitioner Juliana P. Fanesa is Donato's daughter while the third petitioner, Rodolfo Fanes, is
Juliana's husband. Pascual Paulmitan, the other son of Agatona Sagario, is survived by the respondents,
who are his children, name: Alicio, Elena, Abelino, Adelina, Anita, Baking and Anito, all surnamed
Paulmitan.

Until 1963, the estate of Agatona Sagario Paulmitan remained unsettled and the titles to the two lots
mentioned above remained in the name of Agatona. However, on August 11, 1963, petitioner
Donato Paulmitan executed an Affidavit of Declaration of Heirship, extrajudicially adjudicating unto
himself Lot No. 757 based on the claim that he is the only surviving heir of Agatona Sagario. The
affidavit was filed with the Register of Deeds of Negros Occidental on August 20, 1963, cancelled
OCT No. RO-8376 in the name of Agatona Sagario and issued Transfer Certificate of Title (TCT) No.
35979 in Donato's name.

As regards Lot No. 1091, Donato executed on May 28, 1974 a Deed of Sale over the same in favor
of petitioner Juliana P. Fanesa, his daughter. 5

In the meantime, sometime in 1952, for non-payment of taxes, Lot No. 1091 was forfeited and sold
at a public auction, with the Provincial Government of Negros Occidental being the buyer. A
Certificate of Sale over the land was executed by the Provincial Treasurer in favor of the Provincial
Board of Negros Occidental. 6

On May 29, 1974, Juliana P. Fanesa redeemed the property from the Provincial Government of
Negros Occidental for the amount of P2,959.09. 7

On learning of these transactions, respondents children of the late Pascual Paulmitan filed on
January 18, 1975 with the Court of First Instance of Negros Occidental a Complaint against
petitioners to partition the properties plus damages.
Petitioners set up the defense of prescription with respect to Lot No. 757 as an affirmative defense,
contending that the Complaint was filed more than eleven years after the issuance of a transfer
certificate of title to Donato Paulmitan over the land as consequence of the registration with the
Register of Deeds, of Donato's affidavit extrajudicially adjudicating unto himself Lot No. 757. As
regards Lot No. 1091, petitioner Juliana P. Fanesa claimed in her Answer to the Complaint that she
acquired exclusive ownership thereof not only by means of a deed of sale executed in her favor by
her father, petitioner Donato Paulmitan, but also by way of redemption from the Provincial
Government of Negros Occidental.

Acting on the petitioners' affirmative defense of prescription with respect to Lot No. 757, the trial
court issued an order dated April 22, 1976 dismissing the complaint as to the said property upon
finding merit in petitioners' affirmative defense. This order, which is not the object of the present
petition, has become final after respondents' failure to appeal therefrom.

Trial proceeded with respect to Lot No. 1091. In a decision dated May 20, 1977, the trial court
decided in favor of respondents as to Lot No. 1091. According to the trial court, the respondents, as
descendants of Agatona Sagario Paulmitan were entitled to one-half (1/2) of Lot No. 1091, pro
indiviso. The sale by petitioner Donato Paulmitan to his daughter, petitioner Juliana P. Fanesa, did
not prejudice their rights. And the repurchase by Juliana P. Fanesa of the land from the Provincial
Government of Negros Occidental did not vest in Juliana exclusive ownership over the entire land
but only gave her the right to be reimbursed for the amount paid to redeem the property. The trial
court ordered the partition of the land and directed petitioners Donato Paulmitan and Juliana P.
Fanesa to pay private respondents certain amounts representing the latter's share in the fruits of the
land. On the other hand, respondents were directed to pay P1,479.55 to Juliana P. Fanesa as their
share in the redemption price paid by Fanesa to the Provincial Government of Negros Occidental.
The dispositive portion of the trial court's decision reads:

WHEREFORE, judgment is hereby rendered on the second cause of action pleaded

in the complain as follows:

1. The deed of sale (Exh. "F") dated May 28, 1974 is valid insofar as the one-half
undivided portion of Lot 1091 is concerned as to vest ownership over said half
portion in favor of defendant Juliana Fanesa and her husband Rodolfo Fanesa, while
the remaining half shall belong to plaintiffs, pro-indiviso;

2. Lot 1091, Cadastral Survey of Pontevedra, Province of Negros Occidental, now

covered by TCT No. RO-11653 (N.A.), is ordered partitioned. The parties must
proceed to an actual partition by property instrument of partition, submitting the
corresponding subdivision within sixty (60) days from finality of this decision, and
should they fail to agree, commissioners of partition may be appointed by the Court;

3. Pending the physical partition, the Register of Deeds of Negros Occidental is

ordered to cancel Original Certificate of Title No. RO-11653 (N.A.) covering Lot 1091,
Pontevedra Cadastre, and to issue in lieu thereof a new certificate of title in the name
of plaintiffs and defendants, one-half portion each, pro-indiviso, as indicated in
paragraph 1 above;

4. Plaintiffs are ordered to pay, jointly and severally, defendant Juliana Fanesa the
amount of P1,479.55 with interest at the legal rate from May 28, 1974 until paid;

5 Defendants Donato Sagario Paulmitan and Juliana Paulmitan Fanesa are ordered
to account to plaintiffs and to pay them, jointly and severally, the value of the produce
 from Lot 1091 representing plaintiffs' share in the amount of P5,000.00 per year from
1966 up to the time of actual partition of the property, and to pay them the sum of
P2,000.00 as attorney's fees as well as the costs of the suit.

xxx xxx xxx

On appeal, the Court of Appeals affirmed the trial court's decision. Hence this petition.

To determine the rights and obligations of the parties to the land in question, it is well to review,
initially, the relatives who survived the decedent Agatona Sagario Paulmitan. When Agatona died in
1953, she was survived by two (2) sons, Donato and Pascual. A few months later in the same year,
Pascual died, leaving seven children, the private respondents. On the other had, Donato's sole
offspring was petitioner Juliana P. Fanesa.

At the time of the relevant transactions over the properties of decedent Agatona Sagario Paulmitan,
her son Pascual had died, survived by respondents, his children. It is, thus, tempting to apply the
principles pertaining to the right of representation as regards respondents. It must, however, be
borne in mind that Pascual did no predecease his mother, 8 thus precluding the operation of the provisions in the Civil
Code on the right of representation 9
with respect to his children, the respondents. When Agatona Sagario
Paulmitan died intestate in 1952, her two (2) sons Donato and Pascual were still alive. Since it is well-
settled by virtue of Article 777 of the Civil Code that "[t]he rights to the succession are transmitted from
the moment of the death of the decedent," 10 the right of ownership, not only of Donato but also of
Pascual, over their respective shares in the inheritance was automatically and by operation of law vested
in them in 1953 when their mother died intestate. At that stage, the children of Donato and Pascual did
not yet have any right over the inheritance since "[i]n every inheritance, the relative nearest in degree
excludes the more distant
ones." 11 Donato and Pascual excluded their children as to the right to inherit from Agatona Sagario
Paulmitan, their mother.

From the time of the death of Agatona Sagario Paulmitan to the subsequent passing away of her
son Pascual in 1953, the estate remained unpartitioned. Article 1078 of the Civil Code provides:
"Where there are two or more heirs, the whole estate of the decedent is, before its partition, owned
in common by such heirs, subject to the payment of debts of the deceased." 12 Donato and Pascual
Paulmitan were, therefore, co-owners of the estate left by their mother as no partition was ever made.

When Pascual Paulmitan died intestate in 1953, his children, the respondents, succeeded him in the
co-ownership of the disputed property. Pascual Paulmitan's right of ownership over an undivided
portion of the property passed on to his children, who, from the time of Pascual's death, became co-
owners with their uncle Donato over the disputed decedent estate.

Petitioner Juliana P. Fanesa claims ownership over Lot No. 1091 by virtue of two transactions,
namely: (a) the sale made in her favor by her father Donato Paulmitan; and (b) her redemption of the
land from the Provincial of Negros Occidental after it was forfeited for non-payment of taxes.

When Donato Paulmitan sold on May 28, 1974 Lot No. 1091 to his daughter Juliana P. Fanesa, he
was only a co-owner with respondents and as such, he could only sell that portion which may be
allotted to him upon termination of the co-ownership. 13 The sale did not prejudice the rights of
respondents to one half (1/2) undivided share of the land which they inherited from their father. It did not
vest ownership in the entire land with the buyer but transferred only the seller's pro-indiviso share in the
property 14 and consequently made the buyer a co-owner of the land until it is partitioned. InBailon-
Casilao v. Court of Appeals, 15 the Court, through Justice Irene R. Cortes, outlined the effects of a sale by
one co-owner without the consent of all the co-owners, thus:
 The rights of a co-owner of a certain property are clearly specified in Article 493 of
the Civil Code, Thus:

Art. 493. Each co-owner shall have the full ownership of his part and of the fruits and
benefits pertaining thereto, and he may therefore alienate, assign or mortgage it and
even substitute another person its enjoyment, except when personal rights are
involved. But the effect of the alienation or mortgage, with respect to the co-owners,
shall be limited to the portion which may be allotted to him in the division upon the
termination of the co-ownership. [Emphasis supplied.]

As early as 1923, this Court has ruled that even if a co-owner sells the whole
property as his, the sale will affect only his own share but not those of the other co-
owners who did not consent to the sale [Punsalan v. Boon Liat, 44 Phil. 320 (1923)].
This is because under the aforementioned codal provision, the sale or other
disposition affects only his undivided share and the transferee gets only what would
correspond to his grantor in the partition of the thing owned in common [Ramirez v.
Bautista, 14 Phil. 528 (1909)]. Consequently, by virtue of the sales made by Rosalia
and Gaudencio Bailon which are valid with respect to their proportionate shares, and
the subsequent transfers which culminated in the sale to private respondent
Celestino Afable, the said Afable thereby became a co-owner of the disputed parcel
of land as correctly held by the lower court since the sales produced the effect of
substituting the buyers in the enjoyment thereof [Mainit v. Bandoy, 14 Phil. 730
(1910)].

From the foregoing, it may be deduced that since a co-owner is entitled to sell his
undivided share, a sale of the entire property by one co-owner without the consent of
the other co-owners is not null and void. However, only the rights of the co-owner-
seller are transferred, thereby making the buyer a co-owner of the property.

Applying this principle to the case at bar, the sale by petitioner Donato Paulmitan of the land to his
daughter, petitioner Juliana P. Fanesa, did not give to the latter ownership over the entire land but
merely transferred to her the one half (1/2) undivided share of her father, thus making her the co-
owner of the land in question with the respondents, her first cousins.

Petitioner Juliana P. Fanesa also claims ownership of the entire property by virtue of the fact that
when the Provincial Government of Negros Occidental bought the land after it was forfeited for non-
payment of taxes, she redeemed it.

The contention is without merit.

The redemption of the land made by Fanesa did not terminate the co-ownership nor give her title to
the entire land subject of the co-ownership. Speaking on the same issue raised by petitioners, the
Court, in Adille v. Court of Appeals, 16 resolved the same with the following pronouncements:

The petition raises a purely legal issue: May a co-owner acquire exclusive ownership
over the property held in common?

Essentially, it is the petitioners' contention that the property subject of dispute

devolved upon him upon the failure of his co-heirs to join him in its redemption within
the period required by law. He relies on the provisions of Article 1515 of the old Civil
Code, Article 1613 of the present Code, giving the vendee a retro the right to
demand redemption of the entire property.
 There is no merit in this petition.

The right of repurchase may be exercised by co-owner with respect to his share
alone (CIVIL CODE, art. 1612, CIVIL CODE (1889), art. (1514.). While the records
show that petitioner redeemed the property in its entirety, shouldering the expenses
therefor, that did not make him the owner of all of it. In other words, it did not put to
end the existing state of co-ownership (Supra, Art. 489). There is no doubt that
redemption of property entails a necessary expense. Under the Civil Code:

Art. 488. Each co-owner shall have a right to compel the other co-owners to
contribute to the expenses of preservation of the thing or right owned in common and
to the taxes. Any one of the latter may exempt himself from this obligation by
renouncing so much of his undivided interest as may be equivalent to his share of
the expenses and taxes. No such waiver shall be made if it is prejudicial to the co-
ownership.

The result is that the property remains to be in a condition of co-ownership. While a

vendee a retro, under Article 1613 of the Code, "may not be compelled to consent to
a partial redemption," the redemption by one co-heir or co-owner of the property in its
totality does not vest in him ownership over it. Failure on the part of all the co-owners
to redeem it entitles the vendee a retro to retain the property and consolidate title
thereto in his name (Supra, art. 1607). But the provision does not give to the
redeeming co-owner the right to the entire property. It does not provide for a mode of
terminating a co-ownership.

Although petitioner Fanesa did not acquire ownership over the entire lot by virtue of the redemption
she made, nevertheless, she did acquire the right to reimbursed for half of the redemption price she
paid to the Provincial Government of Negros Occidental on behalf of her co-owners. Until
reimbursed, Fanesa hold a lien upon the subject property for the amount due her. 17

Finally, petitioners dispute the order of the trial court, which the Court of Appeals affirmed, for them
to pay private respondents P5,000.00 per year from 1966 until the partition of the estate which
represents the share of private respondents in the fruits of the land. According to petitioners, the
land is being leased for P2,000.00 per year only. This assigned error, however raises a factual
question. The settled rule is that only questions of law may be raised in a petition for review. As a
general rule, findings of fact made by the trial court and the Court of Appeals are final and conclusive
and cannot be reviewed on appeal. 18

WHEREFORE, the petition is DENIED and the decision of the Court of Appeals AFFIRMED.

SO ORDERED.

G.R. No. 76351 October 29, 1993

VIRGILIO B. AGUILAR, petitioner,
vs.
COURT OF APPEALS and SENEN B. AGUILAR, respondents.

Jose F. Manacop for petitioner.

Siruello, Muyco & Associates Law Office for private respondent.

BELLOSILLO, J.:

This is a petition for review on certiorari seeking to reverse and set aside the Decision of the Court of
Appeals in CA-GR CV No. 03933 declaring null and void the orders of 23 and 26 April, 1979, the
judgment by default of 26 July 1979, and the order of 22 October 1979 of the then Court of First
Instance of Rizal, Pasay City, Branch 30, and directing the trial court to set the case for pre-trial
conference.

Petitioner Virgilio and respondent Senen are brothers; Virgilio is the youngest of seven (7) children
of the late Maximiano Aguilar, while Senen is the fifth. On 28 October 1969, the two brothers
purchased a house and lot in Parañaque where their father could spend and enjoy his remaining
years in a peaceful neighborhood. Initially, the brothers agreed that Virgilio's share in the co-
ownership was two-thirds while that of Senen was one-third. By virtue of a written memorandum
dated 23 February 1970, Virgilio and Senen agreed that henceforth their interests in the house and
lot should be equal, with Senen assuming the remaining mortgage obligation of the original owners
with the Social Security System (SSS) in exchange for his possession and enjoyment of the house
together with their father.

Since Virgilio was then disqualified from obtaining a loan from SSS, the brothers agreed that the
deed of sale would be executed and the title registered in the meantime in the name of Senen. It
was further agreed that Senen would take care of their father and his needs since Virgilio and his
family were staying in Cebu.

After Maximiano Aguilar died in 1974, petitioner demanded from private respondent that the latter
vacate the house and that the property be sold and proceeds thereof divided among them.

Because of the refusal of respondent to give in to petitioner's demands, the latter filed on 12 January
1979 an action to compel the sale of the house and lot so that the they could divide the proceeds
between them.

In his complaint, petitioner prayed that the proceeds of the sale, be divided on the basis of two-thirds
(2/3) in his favor and one-third (1/3) to respondent. Petitioner also prayed for monthly rentals for the
use of the house by respondent after their father died.

In his answer with counterclaim, respondent alleged that he had no objection to the sale as long as
the best selling price could be obtained; that if the sale would be effected, the proceeds thereof
should be divided equally; and, that being a co-owner, he was entitled to the use and enjoyment of
the property.

Upon issues being joined, the case was set for pre-trial on 26 April 1979 with the lawyers of both
parties notified of the pre-trial, and served with the pre-trial order, with private respondent executing
a special power of attorney to his lawyer to appear at the pre-trial and enter into any amicable
settlement in his behalf. 1

On 20 April 1979, Atty. Manuel S. Tonogbanua, counsel for respondent, filed a motion to cancel pre-
trial on the ground that he would be accompanying his wife to Dumaguete City where she would be
a principal sponsor in a wedding.

On 23 April 1979, finding the reasons of counsel to be without merit, the trial court denied the motion
and directed that the pre-trial should continue as scheduled.

When the case was called for pre-trial as scheduled on 26 April 1979, plaintiff and his counsel
appeared. Defendant did not appear; neither his counsel in whose favor he executed a special
power of attorney to represent him at the pre-trial. Consequently, the trial court, on motion of plaintiff,
declared defendant as in default and ordered reception of plaintiff's evidence ex parte.

On 7 May 1979, defendant through counsel filed an omnibus motion to reconsider the order of
default and to defer reception of evidence. The trial court denied the motion and plaintiff presented
his evidence.

On 26 July 1979, rendering judgment by default against defendant, the trial court found him and
plaintiff to be co-owners of the house and lot, in equal shares on the basis of their written agreement.
However, it ruled that plaintiff has been deprived of his participation in the property by defendant's
continued enjoyment of the house and lot, free of rent, despite demands for rentals and continued
maneuvers of defendants, to delay partition. The trial court also upheld the right of plaintiff as co-
owner to demand partition. Since plaintiff could not agree to the amount offered by defendant for the
former's share, the trial court held that this property should be sold to a third person and the
proceeds divided equally between the parties.

The trial court likewise ordered defendant to vacate the property and pay plaintiff P1,200.00 as
rentals 2 from January 1975 up to the date of decision plus interest from the time the action was filed.

On 17 September 1979, defendant filed an omnibus motion for new trial but on 22 October 1979 the
trial court denied the motion.

Defendant sought relief from the Court of Appeals praying that the following orders and decision of
the trial court be set aside: (a) the order of 23 April 1970 denying defendants motion for
postponement of the pre-trial set on 26 April 1979; (b) the order of 26 April 1979 declaring him in
default and authorizing plaintiff to present his evidenceex-parte; (e) the default judgment of 26 July
1979; and, (d) the order dated 22 October 1979 denying his omnibus motion for new trial.

On 16 October 1986, the Court of Appeals set aside the order of the trial court of 26 April 1979 as
well as the assailed judgment rendered by default., The appellate court found the explanation of
counsel for defendant in his motion to cancel pre-trial as satisfactory and devoid of a manifest
intention to delay the disposition of the case. It also ruled that the trial court should have granted the
motion for postponement filed by counsel for defendant who should not have been declared as in
default for the absence of his counsel.

Petitioner now comes to us alleging that the Court of Appeals erred (1) in not holding that the motion
of defendant through counsel to cancel the pre-trial was dilatory in character and (2) in remanding
the case to the trial court for pre-trial and trial.
The issues to be resolved are whether the trial court correctly declared respondent as in default for
his failure to appear at the pre-trial and in allowing petitioner to present his evidence ex-parte, and
whether the trial court correctly rendered the default judgment against respondent.

We find merit in the petition.

As regards the first issue, the law is clear that the appearance of parties at the pre-trial is
mandatory. 3 A party who fails to appear at a pre-trial conference may be non-suited or considered as in
default. 4 In the case at bar, where private respondent and counsel failed to appear at the scheduled pre-
trial, the trial, court has authority to declare respondent in default. 5

Although respondent's counsel filed a motion to postpone pre-trial hearing, the grant or denial
thereof is within the sound discretion of the trial court, which should take into account two factors in
the grant or denial of motions for postponement, namely: (a) the reason for the postponement and
(b) the merits of the case of movant. 6

In the instant case, the trial court found the reason stated in the motion of counsel for respondent to
cancel the pre-trial to be without merit. Counsel's explanation that he had to go to by boat as early as
25 March 1979 to fetch his wife and accompany her to a wedding in Dumaguete City on 27 April
1979 where she was one of the principal sponsors, cannot be accepted. We find it insufficient to
justify postponement of the pre-trial, and the Court of Appeals did not act wisely in overruling the
denial. We sustain the trial court and rule that it did not abuse its discretion in denying the
postponement for lack of merit. Certainly, to warrant a postponement of a mandatory process as pre-
trial would require much more than mere attendance in a social function. It is time indeed we
emphasize that there should be much more than mere perfunctory treatment of the pre-trial
procedure. Its observance must be taken seriously if it is to attain its objective, i.e., the speedy and
inexpensive disposition of cases.

Moreover, the trial court denied the motion for postponement three (3) days before the scheduled
pre-trial. If indeed, counsel for respondent could not attend the pre-trial on the scheduled date,
respondent at least should have personally appeared in order not to be declared as in default. But,
since nobody appeared for him, the order of the trial court declaring him as in default and directing
the presentation of petitioner's evidence ex parte was proper. 7

With regard to the merits of the judgment of the trial court by default, which respondent appellate
court did not touch upon in resolving the appeal, the Court holds that on the basis of the pleadings of
the parties and the evidence presented ex parte, petitioner and respondents are co-owners of
subject house and lot in equal shares; either one of them may demand the sale of the house and lot
at any time and the other cannot object to such demand; thereafter the proceeds of the sale shall be
divided equally according to their respective interests.

Private respondent and his family refuse to pay monthly rentals to petitioner from the time their
father died in 1975 and to vacate the house so that it can be sold to third persons. Petitioner alleges
that respondent's continued stay in the property hinders its disposal to the prejudice of petitioner. On
the part of petitioner, he claims that he should be paid two-thirds (2/3) of a monthly rental of
P2,400.00 or the sum of P1,600.00.

In resolving the dispute, the trial court ordered respondent to vacate the property so that it could be
sold to third persons and the proceeds divided between them equally, and for respondent to pay
petitioner one-half (1/2) of P2,400.00 or the sum of P1,200.00 as monthly rental, conformably with
their stipulated sharing reflected in their written agreement.
We uphold the trial court in ruling in favor of petitioner, except as to the effectivity of the payment of
monthly rentals by respondent as co-owner which we here declare to commence only after the trial
court ordered respondent to vacate in accordance with its order of 26 July 1979.

Article 494 of the Civil Code provides that no co-owner shall be obliged to remain in the co-
ownership, and that each co-owner may demand at any time partition of the thing owned in common
insofar as his share is concerned. Corollary to this rule, Art. 498 of the Code states that whenever
the thing is essentially, indivisible and the co-owners cannot agree that it be, allotted to one of them
who shall indemnify the others, it shall be sold and its proceeds accordingly distributed. This is
resorted to (1) when the right to partition the property is invoked by any of the co-owners but
because of the nature of the property it cannot be subdivided or its subdivision would prejudice the
interests of the co-owners, and (b) the co-owners are not in agreement as to who among them shall
be allotted or assigned the entire property upon proper reimbursement of the co-owners. In one
case, 8 this Court upheld the order of the trial court directing the holding of a public sale of the properties
owned in common pursuant to Art. 498 of the Civil Code.

However, being a co-owner respondent has the right to use the house and lot without paying any
compensation to petitioner, as he may use the property owned in common long as it is in
accordance with the purpose for which it is intended and in a manner not injurious to the interest of
the other co-owners. 9 Each co-owner of property heldpro indiviso exercises his rights over the whole
property and may use and enjoy the same with no other limitation than that he shall not injure the
interests of his co-owners, the reason being that until a division is made, the respective share of each
cannot be determined and every co-owner exercises, together with his co-participants joint ownership
over the pro indivisoproperty, in addition to his use and enjoyment of the
same. 10

Since petitioner has decided to enforce his right in court to end the co-ownership of the house and
lot and respondent has not refuted the allegation that he has been preventing the sale of the
property by his continued occupancy of the premises, justice and equity demand that respondent
and his family vacate the property so that the sale can be effected immediately. In fairness to
petitioner, respondent should pay a rental of P1,200.00 per month, with legal interest; from the time
the trial court ordered him to vacate, for the use and enjoyment of the other half of the property
appertaining to petitioner.

When petitioner filed an action to compel the sale of the property and the trial court granted the
petition and ordered the ejectment of respondent, the co-ownership was deemed terminated and the
right to enjoy the possession jointly also ceased. Thereafter, the continued stay of respondent and
his family in the house prejudiced the interest of petitioner as the property should have been sold
and the proceeds divided equally between them. To this extent and from then on, respondent should
be held liable for monthly rentals until he and his family vacate.

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated 16
October 1986 is REVERSED and SET ASIDE. The decision of the trial court in Civil Case No. 69.12-
P dated 16 July 1979 is REINSTATED, with the modification that respondent Senen B. Aguilar is
ordered to vacate the premises in question within ninety (90) days from receipt of this and to pay
petitioner Virgilio B. Aguilar a monthly rental of P1,200.00 with interest at the legal rate from the time
he received the decision of the trial court directing him to vacate until he effectively leaves the
premises.

The trial court is further directed to take immediate steps to implement this decision conformably with
Art. 498 of the Civil Code and the Rules of Court. This decision is final and executory
HEIRS OF SEGUNDA MANINGDING, represented by DELFIN, GIL,
EMMA, MANUEL, RACQUEL, ESTER, REMEDIOS and JESSIE, all
surnamed PARAYNO, MAXIMA PARAYNO, LEONARDO
PARAYNO and FELICISIMA PARAYNO, petitioners, vs. COURT
OF APPEALS and ROQUE BAUZON (deceased), represented by
his heirs and co-defendants Luis and Eriberta Bauzon; LUIS
BAUZON, ERIBERTA BAUZON (deceased), substituted by her
husband PLACIDO ZULUETA, and JOSE
PARAYNO, respondents.

DECISION
BELLOSILLO, J.:

This is an action for annulment of documents, accounting and partition of

two (2) parcels of land, a riceland and a sugarland, situated in Calasiao,
Pangasinan. Petitioners claim that they, together with private respondents Luis
and Eriberta Bauzon, own the disputed lots in common and pro-indiviso. Luis
and Eriberta, the latter represented by her husband Placido Zulueta, aver that
their father Roque Bauzon was the owner of the subject lots by virtue of a deed
of donation propter nuptias. Roque, together with Juan Maningding, Maria
Maningding and Segunda Maningding were the surviving children of Ramon
Bauzon y Untalan who died intestate in 1948. According to petitioners, Roque
Bauzon repudiated the co-ownership over thesugarland in 1965 and
adjudicated it to himself, and that in 1970 Juan and Maria Maningding
[1]

renounced and quitclaimed their shares over the riceland in favor of Roque
Bauzon by virtue of an Affidavit of Quitclaim and Renunciation. Subsequently,
[2]

Roque Bauzon transferred the riceland to his son Luis Bauzon and the
sugarland to his daughter Eriberta Bauzon, both transactions being evidenced
by deeds of sale.
On 31 July 1979 Segunda Maningding died. Her heirs allegedly discovered
the transfers made by Roque Bauzon in favor of his children only in
1986. Consequently, the heirs sought the partition of the properties as well as
the accounting of the produce but were unsuccessful.
On the other hand private respondents aver that the Affidavit of Quitclaim
and Renunciation over the riceland was executed not only by Juan Maningding
and Maria Maningding but also by Segunda Maningding. With regard to the
sugarland, Roque Bauzon denied having executed the Affidavit of Self-
Adjudication presented by petitioners. He claimed that he acquired ownership
over both the sugarland and the riceland by donation propter nuptias from his
parents Ramon Bauzon and Sotera Zulueta on 21 April 1926 in consideration
of his marriage to Petra Loresco. Since the death of Ramon Bauzon in 1948,
Roque had been in open, continuous, notorious, adverse and actual possession
of the subject properties.
The trial court found that the parcels of land formed part of the estate of
Ramon Bauzon and his wife Sotera Zulueta which, upon their death, devolved
by right of succession to their children Segunda Maningding, Maria Maningding,
Juan Maningding and Roque Bauzon in equal pro-indiviso shares. The court a
quo however awarded both parcels to Segunda Maningding and Roque Bauzon
as co-owners in equal shares after finding that Juan Maningding and Maria
Maningding had already executed an Affidavit of Quitclaim and Renunciation. It
rejected the deed of donation for failure to prove its due execution and
authenticity and ruled that the same was negated by the Affidavit of Quitclaim
and Renunciation of Juan Maningding and Maria Maningding in favor of Roque
Bauzon and nullified the deed of sale by Roque Bauzon in favor of Luis Bauzon
as regards the riceland and to Eriberta Bauzon with respect to the sugarland. It
concluded that Roque Bauzon could not have validly conveyed both parcels as
one-half (1/2) of each parcel rightfully belonged to Segunda Maningding and
her heirs.
The Court of Appeals however ruled that the properties validly pertained to
Roque Bauzon by virtue of the donation propter nuptias. Consequently, the
transfers made by Roque Bauzon must be given effect. However, upon motion
for reconsideration, the same deed of donation was declared null and void by
the appellate court for failure to comply with Art. 633 of the old Civil Code, the
law then applicable, which required for the validity of the deed of donation to be
in a public instrument. Nevertheless, the same court maintained that the
properties belonged to Roque Bauzon by virtue of acquisitive prescription.
We agree with the Court of Appeals. Roque Bauzon acquired ownership
over the subject properties by acquisitive prescription. Prescription, in general,
is a mode of acquiring (or losing) ownership and other real rights through the
lapse of time in the manner and under conditions laid down by law, namely, that
the possession should be in the concept of an owner, public, peaceful,
uninterrupted and adverse. Acquisitive prescription is either ordinary or
[3]

extraordinary.[4]

Ordinary acquisitive prescription requires possession in good faith and with

just title for ten (10) years. In extraordinary prescription ownership and other
real rights over immovable property are acquired through uninterrupted adverse
possession thereof for thirty (30) years, without need of title or of good faith.
[5]

The disputed lots are unregistered lands, both parcels being covered only
by tax declarations formerly in the name of Ramon Bauzon and now transferred
to Luis and Eriberta Bauzon.While tax declarations and receipts are not
conclusive evidence of ownership, yet, when coupled with proof of actual
possession, as in the instant case, tax declarations and receipts are strong
evidence of ownership. [6]

Even assuming that the donation proper nuptias is void for failure to comply
with formal requisites, it could still constitute a legal basis for adverse
[7]

possession. With clear and convincing evidence of possession, a private

document of donation may serve as basis for a claim of
ownership. In Pensader v. Pensader we ruled that while the verbal donation
[8] [9]

under which the defendant and his predecessors-in-interest have been in

possession of the lands in question is not effective as a transfer of title, still it is
a circumstance which may explain the adverse and exclusive character of the
possession. In Espique v. Espique we held -
[10]

There is no question that the donation in question is invalid because it involves an

immovable property and the donation was not made in a public document as required
by Article 633 of the old Civil Code, in connection with Article 1328 of the same
Code (concerning gifts propter nuptias), but it does not follow that said donation may
not serve as basis of acquisitive prescription when on the strength thereof the done has
taken possession of the property adversely and in the concept of owner, or, as this
Court well said: While the verbal donation, under which the defendants and his
predecessors-in-interest have been in possession of the lands in question, is not
effective as a transfer of title, yet it is a circumstance which may explain the adverse
and exclusive character of the possession (Pensader v. Pensader, 47 Phil. 673,
680). This is also an action for partition. It was shown that the donation of the
property was made not even in a private document but only verbally. It was also
shown that the defendants, through their predecessors-in-interest, were in adverse and
continuous possession of the lands for a period of over 30 years. Yet, the court
decided the case in favor of defendants on the ground of acquisitive
prescription.There is a close parallelism between the facts of this case and the present.

xxxx

We do not need to stretch our mind to see that under such allegations plaintiffs
intended to convey the idea that defendant has possessed the lands openly, adversely
and without interruption from 1916 to 1949 for he is the one who has possessed and
reaped the whole benefit thereof. As to the character of the possession held by
defendant during that period one cannot also deny that it is in the concept of owner
considering that the lands were donated to him by his predecessors-in-interest on the
occasion of his marriage even if the same was not embodied in a public
instrument. The essential elements constituting acquisitive prescription are therefore
present which negative the right of plaintiffs to ask for partition of said properties. On
this point we find pertinent the following observation of the trial court: Any person
who claims right of ownership over immovable properties and does not invoke that
right but instead tolerated others in possession for thirty years is guilty of laches and
negligence and he must suffer the consequence of his acts.

In the instant case, Roque Bauzon possessed the subject parcels of land in
the concept of owner by virtue of the donation propter nuptias. The possession
was public as it was Roque Bauzon who personally tilled and cultivated the
lots. The acts of reaping the benefits of ownership were manifest and visible to
all. These acts were made more pronounced and public considering that the
parcels of land are located in a municipality wherein ownership and possession
are particularly and normally known to the community. Roque peacefully
possessed the properties as he was never ousted therefrom nor prevented from
enjoying their fruits. His possession was uninterrupted and in good faith
because of his well-founded belief that the donation propter nuptias was
properly executed and the grantors were legally allowed to convey their
respective shares in his favor. He likewise appropriated to himself the whole
produce of the parcels of land to the exclusion of all others.
The donation propter nuptias was effected as early as 21 April 1926. It was
only in 1986 when the heirs of Segunda Maningding demanded partition of the
properties and conveyance of the produce. Sixty (60) years have already
elapsed. Even granting that Roque Bauzon possessed the properties only upon
the death of his father in 1948, more than thirty (30) years have already
passed. In either case, acquisitive prescription has already set in in favor of
Roque Bauzon.
Again, even if we assume the absence of good faith and just title, the
ownership of the two (2) parcels would still appertain to Roque Bauzon. As
testified to by Delfin Parayno, one of petitioners, Roque Bauzon and his heirs
had been in continuous, adverse and public possession of the property since
1948 up to 1986, or a period of thirty-six (36) years, which is more than the
required thirty-year extraordinary prescription.
Prescription, as a rule, does not run in favor of a co-heir or co-owner as long
as he expressly or impliedly recognizes the co-ownership. Co-owners cannot
[11]

acquire by prescription the share of the other co-owners, absent a clear

repudiation of the co-ownership. In order that title may prescribe in favor of one
of the co-owners, it must be clearly shown that he has repudiated the claims of
the others, and that they were apprised of his claim of adverse and exclusive
ownership, before the prescriptive period would begin to run. Mere refusal to
accede to a partition, without specifying the grounds for such refusal, cannot be
considered as notice to the other co-owners of the occupants claim of title in
himself in repudiation of the co-ownership. The evidence relative to the
possession, as a fact upon which the alleged prescription is based, must be
clear, complete and conclusive in order to establish said prescription without
any shadow of doubt; and when upon trial it is not shown that the possession
of the claimant has been adverse and exclusive and opposed to the rights of
the others, the case is not one of ownership, and partition will lie.
[12]

Therefore while prescription among co-owners cannot take place when the
acts of ownership exercised are vague and uncertain, such prescription arises
and produces all its effects when the acts of ownership do not evince any doubt
as to the ouster of the rights of the other co-owners. As disclosed by the
[13]

records, Roque Bauzon and his heirs possessed the property from 1948 to
1986 to the exclusion of petitioners who were never given their shares of the
fruits of the properties, for which reason they demanded an accounting of the
produce and the conveyance to them of their shares. Unfortunately they slept
on their rights and allowed almost thirty-six (36) years to lapse before
attempting to assert their right. Perforce, they must suffer the consequence of
their inaction.
WHEREFORE, the petition is DENIED. The Resolution of the Court of
Appeals of 7 July 1995 which modified its Decision of 29 November 1994 and
holding that the deceased Roque Bauzon acquired the disputed two (2) parcels
of land by acquisitive prescription is AFFIRMED. Costs against petitioners.
SO ORDERED.
G.R. No. 164277 October 8, 2014

FE U. QUIJANO, Petitioner,
vs.
ATTY. DARYLL A. AMANTE, Respondent.

DECISION

BERSAMIN, J.:

Where the plaintiff does not prove her alleged tolerance of the defendant's occupation, the
possession is deemed illegal from the beginning. Hence, the action for unlawful detainer is an
improper remedy. But the action cannot be considered as one for forcible entry without any
allegation in the complaint that the entry of the defendant was by means of force, intimidation,
threats, strategy or stealth.

Antecedents

The petitioner and her siblings, namely: Eliseo, Jose and Gloria, inherited from their father, the late
Bibiano Quijano, the parcel of land registered in the latter's name under Original Certificate of Title
(OCT) No. 0-188 of the Registry of Deeds in Cebu City with an area of 15,790 square meters, more
or less.1 On April 23, 1990, prior to any partition among the heirs, Eliseo sold a portion of his share,
measuring 600 square meters, to respondent Atty. Daryll A. Amante (respondent), with the affected
portion being described in the deed of absolute sale Eliseo executed in the following manner:

A portion of a parcel of land located at the back of the Pleasant Homes Subdivision and also at the
back of Don Bosco Seminary, Punta Princesa, Cebu City, to be taken from my share of the whole
lot; the portion sold to Atty. Amante is only 600 square meters which is the area near the boundary
facing the Pleasant Homes Subdivision, Cebu City.2

On July 25, 1991, Eliseo, sickly and in need of money, sold an additional 1/3 portion of his share
inthe property to the respondent, with their deed of absolute sale stating that the sale was with the
approval of Eliseo’s siblings, and describing the portion subject of the sale as:

That the portion covered under this transaction is Specifically located right at the back of the
seminary facing Japer Memorial School and where the fence and house of Atty. Amante is located.3

On September 30, 1992, Fe, Eliseo, Jose and Gloria executed a deed of extrajudicial partition to
divide their father’s estate (consisting of the aforementioned parcel of land) among
themselves.4 Pursuant to the deed extrajudicial partition, OCT No. O-188 was cancelled, and on July
12, 1994 the Register of Deeds issued TransferCertificate of Title (TCT) No. 6555, TCT No. 6556,
TCT No. 6557 and TCT No. 65585 to the petitioner, Gloria, Jose, and Eliseo, respectively. The
partition resulted in the portions earlier sold by Eliseo to the respondent being adjudicated to the
petitioner instead of to Eliseo.6

Due to the petitioner’s needing her portion that was then occupied by the respondent, she
demanded that the latter vacate it. Despite several demands, the last of which was by the letter
dated November 4, 1994,7 the respondent refused to vacate, prompting her to file against him on
February 14, 1995 a complaint for ejectment and damages in the Municipal Trial Court in Cities of
Cebu City (MTCC), docketed as Civil Case No. R-34426.8She alleged therein that she was the
registered owner of the parcel of land covered by TCT No. 6555, a portion of which was being
occupied by the respondent, who had constructed a residential building thereon by the mere
tolerance of Eliseo when the property she and her siblings had inherited from their father had not yet
been subdivided, and was thus still co-owned by them; and that the respondent’s occupation had
become illegal following his refusal to vacate despite repeated demands.

The respondent denied that his possession of the disputed portion had been by mere tolerance of
Eliseo. He even asserted that he was in fact the owner and lawful possessor of the property, having
bought it from Eliseo; that the petitioner and her siblings could not deny knowing about the sale in
his favor because they could plainly see his house from the road; and that the deed of absolute sale
itself stated that the sale to him was with their approval, and that they had already known that his
house and fence were existing; that before he purchased the property, Eliseo informed him that he
and his co-heirs had already orally partitioned the estate of their father, and that the portion being
sold to him was Eliseo’s share; and that with his having already purchased the property before the
petitioner acquired it under the deed of extrajudicial partition, she should respect his ownership and
possession of it.9

Judgment of the MTCC

On February 5, 1996, the MTCC rendered its decision in favor of the petitioner,10 ruling that the
deeds of sale executed by Eliseo in favor of the respondent did not have the effect of conveying the
disputed property to him inasmuch as at the time of the sale, the parcel of land left by their father,
which included the disputed property, had not yet been partitioned, rendering Eliseo a mere co-
owner of the undivided estate who had no right to dispose of a definite portion thereof; that as a co-
owner, Eliseo effectively conveyed to the respondent only the portion that would ultimately be
allotted to him once the property would be subdivided; that because the disputed property was
adjudicated to the petitioner under the deed of extrajudicial settlement and partition, she was its
owner with the consequent right of possession; and that, as such, she had the right to demand that
the respondent vacate the land.

The MTCC disposed as follows:

WHEREFORE, in view of all the foregoing premises, and on the basis thereof, judgment is hereby
rendered in favor of the plaintiff and against the defendant, ordering the defendant; to:

1) vacate from the portion, presently occupied by him and whereon his building stands, of
that parcel of land locatedin Cebu City covered by TCT No. 6555 and registered in the
nameof the plaintiff; and to remove and/or demolish the building and all the structures that
may have been built on said portion;

2) pay the plaintiff the rentalof P1,000.00 a month for the portion in litigation from November
21, 1994 until such time that the defendant shall have vacated, and have removed all
structures from said portion, and have completely restored possession thereof to the plaintiff;
and

3) pay unto the plaintiff the sum of P10,000.00 as attorney’s fees; and the sum of P5,000.00
for litigation expenses; and

4) to pay the costs of suit.

SO ORDERED.11
 Decision of the RTC

On appeal, the Regional Trial Court (RTC) reversed the judgment of the MTCC, and dismissed the
complaint,12holding that the summary proceeding for ejectment was not proper because the serious
question of ownership of the disputed property was involved, viz:

In the case at bar, by virtue of the deed of absolute sale executed by Eliseo Quijano, one of the co-
heirs of Fe Quijano, in 1990 and 1991, the defendant Atty. Amante took possession of the portion in
question and built his residential house thereat. Itwas only in 1992 that the heirs of Bibiano Quijano
executed the deed of extrajudicial partition, and instead of giving to Eliseo Quijano the portion that
he already sold to the defendant, the same was adjudicated toplaintiff, Fe Quijano to the great
prejudice of the defendant herein who had been in possession of the portion in question since 1990
and which possession is notpossession de facto but possession de jure because it is based on 2
deeds of conveyances executed by Eliseo Quijano. There is, therefore, a serious question of
ownership involved which cannot be determined in a summary proceeding for ejectment. Since the
defendantis in possession of the portion in question where his residential house is built for several
years, and before the extrajudicial partition, the possession of the defendant, to repeat, is one of
possession de jure and the plaintiff cannot eject the defendant in a summary proceeding for
ejectment involving only possession de facto. What the plaintiff should have done was to file an
action publiciana or action reinvindicatoria before the appropriate court for recovery of possession
and ownership. However, since there is a pending complaint for quieting of title filed by the
defendant against the plaintiff herein before the Regional Trial Court, the matter of ownership should
be finally resolved in said proceedings.13 Undaunted, the petitioner moved for reconsideration, but
the RTC denied her motion on November 13, 1996.14

Decision of the CA

The petitioner appealed to the CA by petition for review.

On May 26, 2004, the CA promulgated its decision,15 affirming the decision of the RTC, and
dismissing the case for ejectment, but on the ground that the respondent was either a co-owner or
an assignee holding the right of possession over the disputed property.

The CA observed that the RTC correctly dismissed the ejectment case because a question of
ownership over the disputed property was raised; that the rule that inferior courts could pass upon
the issue of ownership to determine the question of possession was well settled; that the institution
of a separate action for quieting of title by the respondent did not divest the MTCC of its authority to
decide the ejectment case; that Eliseo, as a coowner, had no right to sell a definite portion of the
undivided estate; that the deeds of sale Eliseo executed in favor of the respondent were valid only
with respect to the alienation of Eliseo’s undivided share; that after the execution of the deeds of
sale, the respondent became a co-owner along with Eliseo and his co-heirs, giving him the right
toparticipate in the partition of the estate owned in common by them; that because the respondent
was not given any notice of the project of partition or of the intention to effect the partition, the
partition made by the petitioner and her co-heirs did not bind him; and that, as to him, the entire
estate was still co-owned by the heirs, giving him the right to the co-possession of the estate,
including the disputed portion.

Issues

The petitioner has come to the Court on appeal by certiorari,16 contending that the CA grossly erred
in holding that the respondent was either a co-owner or an assignee with the right of possession
over the disputed property.17
The petitioner explains that the respondent, being a lawyer, knew that Eliseo could not validly
transfer the ownership of the disputed property to him because the disputed property was then still a
part of the undivided estate co-owned by all the heirs of the late Bibiano Quijano; that the
respondent’s knowledge of the defect in Eliseo’s title and his failure to get the co-heirs’ consent to
the sale in a registrable document tainted his acquisition with bad faith; that being a buyer in bad
faith, the respondent necessarily became a possessor and builder in bad faith; that she was not
aware of the sale to the respondent, and it was her ignorance of the sale that led her to believe that
the respondent was occupying the disputed property by the mere tolerance of Eliseo; thatthe
partition was clearly done in good faith; and that she was entitled to the possession of the disputed
property as its owner, consequently giving her the right to recover it from the respondent.18

To be resolved is the issue ofwho between the petitioner and the respondent had the better right to
the possession of the disputed property.

Ruling

The petition for review on certiorarilacks merit.

An ejectment case can be eitherfor forcible entry or unlawful detainer. It is a summary proceeding
designed to provide expeditious means to protect the actual possession or the right to possession of
the property involved.19The sole question for resolution in the case is the physical or material
possession (possession de facto)of the property in question, and neither a claim of juridical
possession (possession de jure)nor an averment of ownership by the defendant can outrightly
deprive the trial court from taking due cognizance of the case. Hence,even if the question of
ownership is raised in the pleadings, like here, the court may pass upon the issue but only to
determine the question of possession especially if the question of ownership is inseparably linked
with the question of possession.20 The adjudication of ownership in that instance is merely
provisional, and will not bar or prejudice an action between the same parties involving the title to the
property.21

Considering that the parties are both claiming ownership of the disputed property, the CA properly
ruled on the issue of ownership for the sole purpose of determining who between them had the
better right to possess the disputed property.

The disputed property originally formed part of the estate of the late Bibiano Quijano, and passed on
to his heirs by operation of law upon his death.22 Prior to the partition, the estate was owned in
common by the heirs, subject to the payment of the debts of the deceased.23 In a co-ownership, the
undivided thing or right belong to different persons, with each of them holding the property pro
indivisoand exercising her rights over the whole property. Each co-owner may use and enjoy the
property with no other limitation than that he shall not injure the interests of his co-owners. The
underlying rationale is that until a division is actually made, the respective share of each cannot be
determined, and every co-owner exercises, together with his co-participants, joint ownership of the
pro indiviso property, in addition to his use and enjoyment of it.24

Even if an heir’s right in the estate of the decedent has not yet been fully settled and partitioned and
is thus merely inchoate, Article 49325 of the Civil Codegives the heir the right to exercise acts of
ownership. Accordingly, when Eliseo sold the disputed property to the respondent in 1990 and 1991,
he was only a co-owner along with his siblings, and could sell only that portion that would beallotted
to him upon the termination of the co-ownership. The sale did not vest ownership of the disputed
property in the respondent but transferred only the seller’s pro indiviso share to him, consequently
making him, as the buyer, a co-owner of the disputed property until it is partitioned.26
As Eliseo’s successor-in-interest or assignee, the respondent was vested with the right under Article
497 of the Civil Codeto take part in the partition of the estate and to challenge the partition
undertaken without his consent.27Article 497 states:

Article 497. The creditors or assignees of the co-owners may take part in the division of the thing
owned in common and object to its being effected without their concurrence. But they cannot impugn
any partition already executed, unless there has been fraud, or in case it was made notwithstanding
a formal opposition presented to prevent it, without prejudice to the right of the debtor or assignor to
maintain its validity.

The respondent could not deny that at the time of the sale he knew that the property he was buying
was notexclusively owned by Eliseo. He knew, too, that the co-heirs had entered into an oral
1âw phi 1

agreement of partition vis-à-vis the estate, such knowledge being explicitly stated in his answer to
the complaint, to wit:

12. That defendant, before he acquired the land from Eliseo Quijano was informed by the latter that
the portion sold to him was his share already; that they have orally partitioned the whole lot before
defendant acquired the portion from him.28

His knowledge of Eliseo’s co-ownership with his co-heirs, and of their oral agreement of partition
notwithstanding, the respondent still did not exercise his right under Article 497. Although Eliseo
made it appear to the respondent that the partition had already been completed and finalized, the
co-heirs had not taken possession yet oftheir respective shares to signify that they had ratified their
agreement, if any. For sure, the respondent was no stranger to the Quijanos, because he himself
had served as the lawyer of Eliseo and the petitioner herself.29 In that sense, it would have been easy
for him to ascertain whether the representation of Eliseo to him was true. As it turned out, there had
been no prior oral agreement among the heirs to partition the estate; otherwise, Eliseo would have
questioned the deed of extrajudicial partition because it did not conform to what they had supposedly
agreed upon. Had the respondent been vigilant in protecting his interest, he could have availed
himself of the rights reserved to him by law, particularly the right to take an active part in the partition
and to object to the partition if he wanted to. It was only on September 30, 1992, or two years and
five months from the time of the first sale transaction, and a year and two months from the time of
the second sale transaction, that the co-heirs executed the deed of extrajudicial partition. Having
been silent despite his ample opportunity to participate in or toobject to the partition of the estate, the
respondent was bound by whatever was ultimately agreed upon by the Quijanos.

There is no question that the holder of a Torrens title is the rightful owner of the property thereby
covered and is entitled to its possession.30 However, the Court cannot ignore thatthe statements in
the petitioner’s complaint about the respondent’s possession of the disputed property being by the
mere tolerance of Eliseo could be the basis for unlawful detainer. Unlawful detainer involves the
defendant’s withholding of the possession of the property to which the plaintiff is entitled, after the
expiration or termination of the former’s right tohold possession under the contract, whether express
or implied. A requisite for a valid cause of action of unlawful detainer is that the possession was
originally lawful, but turned unlawful only upon the expiration of the right to possess.

To show that the possession was initially lawful, the basis of such lawful possession must then be
established. With the averment here that the respondent’s possession was by mere tolerance of the
petitioner, the acts of tolerance must be proved, for bare allegation of tolerance did not suffice. At
least, the petitioner should show the overt acts indicative of her or her predecessor’s tolerance, or
her co-heirs’ permission for him to occupy the disputed property.31 But she did not adduce such
evidence. Instead, she appeared to be herself not clear and definite as to his possession of the
disputed property being merely tolerated by Eliseo, as the following averment of her petition for
review indicates:

6.9. Their ignorance of the said transaction of sale, particularly the petitioner, as they were not duly
informed by the vendor-co[-]owner Eliseo Quijano, [led] them to believe that the respondent’s
occupancy of the subject premises was by mere tolerance of Eliseo, so that upon partition of the
whole property,said occupancy continued to be under tolerance of the petitioner when the subject
premises became a part of the land adjudicated to the latter;32 (emphasis supplied) In contrast, the
respondent consistently stood firm on his assertion that his possession of the disputed property was
in the concept of an owner, not by the mere tolerance of Eliseo, and actually presented the deeds of
sale transferring ownership of the property to him.33

Considering that the allegation ofthe petitioner’s tolerance of the respondent’s possession of the
disputed property was not established, the possession could very well be deemed illegal from the
beginning. In that case, her action for unlawful detainer has to fail.34 Even so, the Court would not be
justified to treat this ejectment suit as one for forcible entry because the complaint contained no
allegation thathis entry in the property had been by force, intimidation, threats, strategy or stealth.

Regardless, the issue of possession between the parties will still remain. To finally resolve such
issue,they should review their options and decide on their proper recourses. In the meantime, it is
wise for the Court to leave the door open to them in that respect. For now, therefore, this recourse of
the petitioner has to be dismissed.

WHEREFORE, the Court AFFIRMS the decision promulgated on May 26, 2004 subject to the
MODIFICATION that the unlawful detainer action is dismissed for being an improper remedy; and
ORDERS the petitioner to pay the costs of suit.

SO ORDERED.