G.R. No. 171315. February 26, 2008.*

ANTONIO ARBIZO, petitioner, vs. SPS. ANTONIO SANTILLAN and ROSARIO L. SANTILLAN, respondents.

ANTONIO ARBIZO, petitioner, vs. SPS. JOHN WASSMER and LUZ MARCELO-WASSMER, respondents.

ANTONIO ARBIZO, petitioner, vs. PACITA MARCELO, respondent.

Actions; Ejectment; Forcible Entry; Unlawful Detainer; Words and Phrases; “Forcible Entry” and “Unlawful Detainer,” Distinguished.—The summary remedies of forcible entry and unlawful detainer under Section 1, Rule 70 of the 1997 Rules of Court are distinguished from each other as follows: In forcible entry, one is deprived of physical possession of land or building by means of force, intimidation, threat, strategy, or stealth. In unlawful detainer, one unlawfully withholds possession thereof after the expiration or termination of his right to hold possession under any contract, express or implied. In forcible entry, the possession is illegal from the beginning and the basic inquiry centers on who has the prior possession de facto. In unlawful detainer, the possession was originally lawful but became unlawful by the expiration or termination of the right to possess, hence the issue of rightful possession is decisive for, in such action, the defendant is in actual possession and the plaintiff’s cause of action is the termination of the defendant’s right to continue in possession. What determines the cause of action is the nature of defendant’s entry into the land. If the entry is illegal, then the action which may be filed against the intruder within one year therefrom is forcible entry. If, on the other hand, the entry is legal but the possession thereafter became illegal, the case is one of unlawful detainer which must be filed within one year from the date of the last demand.

Same; Same; Same; Same; Same; Verily, in ejectment cases, the word “possession” means nothing more than actual physical possession, not legal possession, in the sense contemplated in civil law—the only issue in such cases is who is entitled to the physical or material possession of the property involved, independent of any claim of ownership set forth by any of the party-litigants, and it does not even matter if the party’s title to property is questionable.—In filing forcible entry cases, the law tells us that two allegations are mandatory for the municipal court to acquire jurisdiction: first, the plaintiff must allege prior physical possession of the property, and second, he must also allege that he was deprived of his possession by any of the means provided for in Section 1, Rule 70 of the Rules of Court, i.e., by force, intimidation, threat, strategy or stealth. It is also settled that in the resolution of such a case, what is material is the determination of who is entitled to the physical possession of the property. Indeed, any of the parties who can prove prior possession de facto may recover such possession even from the owner himself since such cases proceed independently of any claim of ownership and the plaintiff needs merely to prove prior possession de facto and undue deprivation thereof. The question of possession is primordial while the issue of ownership is unessential. Verily, in ejectment cases, the word “possession” means nothing more than actual physical possession, not legal possession, in the sense contemplated in civil law. The only issue in such cases is who is entitled to the physical or material possession of the property involved, independent of any claim of ownership set forth by any of the party-litigants. It does not even matter if the party’s title to property is questionable.

Same; Same; Same; Worthy of note is that an action for forcible entry is a quieting process that is summary in nature—it is designed to recover physical possession through speedy proceedings that are restrictive in nature, scope and time limits; The Rule on Summary Procedure precisely provides for the submission by the parties of affidavits and position papers and enjoins courts to hold hearings only when it is necessary to do so to clarify factual matters.

CHICO-NAZARIO, J.:

For review on certiorari under Rule 451 of the 1997 Rules of Civil Procedure filed by petitioner Antonio Arbizo is the Decision2 of the Court of Appeals dated 31 January 2006. The Court of Appeals ordered petitioner to vacate the properties subject of this case. The assailed Decision reversed and set aside the Decision3 dated 20 February 2004 of the Regional Trial Court (RTC) of Iba, Zambales, which affirmed in toto the Decision4 dated 18 August 2003 of the 3rd Municipal Circuit Trial Court (MCTC) of Botolan-Cabangan, Cabangan, Zambales, in Civil Cases No. 833, No. 834, No. 835 and No. 836.

Central to this controversy is the possession of the above three adjoining parcels of land (subject properties) which are all situated in Barangay San Isidro, Cabangan, Zambales, with an area of 1,200 square meters each. The subject properties are being claimed by petitioner to be part of the property described under Tax Declaration No. 16-0032 in the name of his deceased father, Celestino Arbizo. Respondents, on the other hand, assert ownership over the same based on separate titles in their names, particularly: (a) Transfer Certificate of Title (TCT) No. T-50723 in the names of the spouses John and Luz Marie Wassmer;5 (b) TCT No. 50722 in the name of Pacita Marcelo;6 and (c) TCT No. T-50725 in the names of the spouses Antonio and Rosario Santillan.7

The records show that on 27 June 2001, the respondents filed with the MCTC three separate Complaints for Ejectment against the petitioner. Finding similarity in the issues involved, the MCTC jointly heard the three Complaints under the Rules on Summary Procedure.

In their Complaints, the respondents averred that right after they purchased the subject properties in 1998, they immediately enclosed the same with a wooden perimeter fence with barbed wire. Sometime in September 2000, the petitioner, without their knowledge, much less consent, unlawfully occupied the subject properties by removing and destroying the fence they had installed, and later replacing it with his own concrete fence. Despite repeated demands to vacate the subject properties, petitioner vehemently refused to do so. Thus, respondents prayed that the petitioner be ordered to vacate the subject properties, and to pay each of them: (1) the amount of P1,000.00 per month from September 2000 until the subject properties are vacated, as actual damages in the form of reasonable compensation for the use and occupation thereof; (2) the amount of P25,000,00 as attorney’s fees plus P800.00 per court appearance; and (3) the amount of P10,000.00 as moral and exemplary damages.

In response, the petitioner countered that the subject lots formed part of the 29,345-square meter property previously owned by his father, Celestino Arbizo, who occupied the same during his lifetime as early as 1921. At the time of his father’s death on 11 May 1956, he left the entire property as part of his estate to his forced and compulsory heirs; namely, Maria Facelo Arbizo (the petitioner’s mother), Carolina Arbizo-Noceda, Aurora Arbizo-Ecdao, Anacleto Arbizo and Ma. Agrifina Arbizo-Mendigorin (the

children of Celestino Arbizo by the first and second marriages).8 Petitioner’s wife, Dominga Arbizo, bought the undivided shares of Anacleto Arbizo and Ma. Agrifina Arbizo-Mendigorin in the said property on 15 August 1976 and 16 November 1976, respectively. Since then, petitioner claimed to have been in peaceful, continuous and uninterrupted possession of the 11,230-square meter parcel of land which included the subject properties. By way of counterclaim, the petitioner prayed that the respondents be ordered to pay him the amount of P100,000.00 per court appearance as attorney’s fees.

On 18 August 2003, on the basis of the position papers and documentary evidence adduced by the parties, the MCTC rendered a Decision dismissing the three Complaints for Ejectment filed by the respondents after finding that the petitioner had preferred possession over the subject properties. The fallo of the said Decision is quoted hereunder:

“WHEREFORE, in view of the preponderance of evidence submitted by the [herein petitioner], judgment is hereby rendered dismissing the complaints against him for lack of merit.”9

In sustaining the petitioner’s position, the MCTC explained at length its disposition as follows:

“From the evidence on record, it appears that the [herein respondents] obtained their respective title over the lots in the year 1998. If their and their witnesses’ word were to be given credit, the [respondents] entered the land when they thereupon enclosed/fenced the same with wooden posts and barbed wire but were removed, destroyed and later replaced by the [herein petitioner] in September, 2000 with concrete fences (sic).

The relocation survey report and sketch plan of the geodetic engineer meantime reveal that the disputed adjoining lots (having an approximate area of 1,200 square meters each) are part of the 11,230 square-meter land (sic) held and occupied by the [petitioner]. Likewise, extant in the technical report and plan are the other recorded improvements consisting of huts belonging to the [petitioner] and found standing inside his occupied property. The Court itself confirmed the existence of these improvements during the ocular inspection of the property.

Equally evident from the documents presented is the fact that the large stretch of land being occupied by the [petitioner] came from his father the late Celestino Arbizo in whose name the tax declaration for the land for the year 1985 was issued. That two (2) of the Arbizo’s sibling, Anacleto Arbizo and Agrifina Arbizo-Mendigorin, conveyed and sold their respective 1/5 shares from (sic) the property to Dominga P. Arbizo [petitioner’s] wife is doubtlessly established by the two (2) deeds of sale executed by the former in the year 1976. This logically explains why [petitioner] Antonio Arbizo and his wife are as seen in the engineer’s documents occupying an approximate area of 11,230 square meters out of the 2.9 hectare-property (sic) tax declared in the name of Celestino Arbizo who at the time of his death appeared to have left five (5) heirs. x x x.

Moreover, the corroborated declarations of [petitioner’s] witnesses (one of whom [Jesus Paredes] is 81 years old and a long-time friend of [petitioner’s] father convincingly prove that [petitioner] has already been occupying the Arbizo property including the controverted [three] parcels of land much long before the [respondents] bought, registered, and fenced them in the year 1998. Proof that the [petitioner] has

preferred possession is the testimony of Conrado Santos, [respondents’] own witness, to the effect that said [petitioner] was at the area and that the laborers even took their refreshment at the nearby resthouse of the Arbizo’s during their fencing of [respondents’] properties. On this point, [petitioner’s] possession becomes even more superior if the span of years that his father and predecessor-in-interest had held the property were to be tacked to his own possession.

Over-all, the unrefuted documentary evidence brought to light by the [petitioner] indubitably proves that his physical occupation and exercise of acts of possession antedate that of the [respondents]. Clearly, since it is [petitioner’s] possession that enjoys priority of time, he is, under the law, entitled to continue possessing the lands in question. (De Luna vs. Court of Appeals, 212 SCRA 276).”10

Dissatisfied, the respondents then elevated the matter to the RTC. On 20 February 2004, the RTC sustained the dismissal by the MCTC of the respondents’ Complaints for Ejectment, holding that the petitioner had a better right of possession over the subject properties for having been in possession of the same long before they were acquired by the respondents in 1998. The respondents then sought the reconsideration of the Decision, but the RTC denied the same for lack of merit in the Order dated 17 March 2004.11

Herein respondents then raised the case to the Court of Appeals. In its Decision dated 31 January 2006, it held:

“WHEREFORE, the foregoing premises considered, the instant Petition is hereby GRANTED. The Decision dated February 20, 2004 of Branch 71 of the Regional Trial Court of Iba, Zambales, affirming in toto the Decision dated August 18, 2003 of the 3rd Municipal Circuit Trial Court of Botolan-Cabangan, Cabangan, Zambales in Civil Case Nos. 834, 835 and 836 is hereby REVERSED and SET ASIDE. A new one is being entered ORDERING the [herein petitioner] (1) to vacate the subject lots and peacefully surrender the possession thereof to the [herein respondents]; and (2) to pay each of the [respondents] the amount of P1,000.00 per month from September 2000 until the possession of the subject lots shall have been completely restored to the [respondents] as reasonable compensation for the use and occupation thereof, and the amount of P10,000.00 as attorney’s fees.”12

To support its contrary conclusion reversing the MCTC and the RTC, the Court of Appeals declared:

“The records of the case reveal that prior to 1998, the possession of the subject lots was undoubtedly in the hands of the [herein petitioner]. To substantiate his allegation that he had prior possession of the subject lots, the [petitioner] adduced in evidence Tax Declaration No. 16-0032 which was issued in 1985, and the two (2) deeds of sale in 1976 executed in favor of his wife, Dominga Arbizo, by Anacleto Arbizo and Agrifina Arbizo-Mendigorin. In addition, the [petitioner] presented the affidavits of his witnesses, Jesus Paredes and Rosario Corpuz, both stating therein that he remained in possession of the subject lots even up to the present time. However, We find that these pieces of evidence do not successfully debunk the claim of the [herein respondents] that they were able to wrest physical possession of the subject lots in 1998 when they installed a fence enclosing the same. Furthermore, the fact that the MCTC found [petitioner’s] several huts standing on the subject lots during the ocular inspection does not necessarily establish that the [petitioner] had been in peaceful, continuous and uninterrupted

possession of the subject lots. As the records disclose, the ocular inspection was conducted in 2003 which was approximately three (3) years after the unlawful intrusion by the [petitioner]. Hence, We cannot readily conclude that the huts were already there when the [respondents] took actual possession of the subject lots in 1998 as these huts could be easily constructed.

Upon the other hand, the [respondents] presented their respective certificates of title and tax declarations to prove that they had been the registered owners of the subject lots since 1998. While it is admitted that tax declarations and certificates of title evidencing their ownership over the subject lots did not squarely address the issue of prior actual possession raised in a forcible entry case (German Management Services, Inc. vs. Court of Appeals, 177 SCRA 495, 499 [1989]), they nevertheless bolstered the stance of the [respondents] that they took physical possession of the subject lots by virtue of such ownership. Significantly, to further corroborate their claim that they were the actual possessors of the subject property at the time of the illegal dispossession, they submitted the affidavit of Conrado Santos establishing that he and his son constructed a wooden fence enclosing the subject lots bought by the [respondents], and that of Gloria Dalisaymo confirming that this wooden fence was later destroyed and replaced with a concrete fence by the [petitioner] in September 2000. Clearly from the foregoing, they sufficiently established by preponderance of evidence that they were able to take material or physical possession of the subject lots from 1998 to September 2000. It must be stressed that the fencing of the subject lots by the [respondents] in 1998 without any objection or protest from the [petitioner] for nearly two (2) years is deemed sufficient to confer upon them actual possession thereof.”13

Not to be stymied, petitioner is now before this Court raising the issue of whether the Decision of the Court of Appeals is supported by evidence on record and in accordance with laws and jurisprudence established by the Supreme Court.14 The pertinent point of inquiry is whether or not private respondents have a valid ground to evict petitioner from the subject properties.

A complaint for forcible entry may be instituted in accordance with Section 1, Rule 70 of the 1997 Rules of Court:

“SECTION 1. Who may institute proceedings, and when.—Subject to the provisions of the next succeeding section, a person deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, or a lessor, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied, or the legal representatives or assigns of any such lessor, vendor, vendee, or other person may at any time within (1) one year after such unlawful deprivation or withholding of possession, bring an action in the proper Municipal Trial Court against the person or persons unlawfully withholding or depriving of possession, or any person or persons claiming under them, for the restitution of such possession, together with damages and costs.”

The summary remedies of forcible entry and unlawful detainer under Section 1, Rule 70 of the 1997 Rules of Court are distinguished from each other as follows:

“In forcible entry, one is deprived of physical possession of land or building by means of force, intimidation, threat, strategy, or stealth. In unlawful detainer, one unlawfully withholds possession

thereof after the expiration or termination of his right to hold possession under any contract, express or implied. In forcible entry, the possession is illegal from the beginning and the basic inquiry centers on who has the prior possession de facto. In unlawful detainer, the possession was originally lawful but became unlawful by the expiration or termination of the right to possess, hence the issue of rightful possession is decisive for, in such action, the defendant is in actual possession and the plaintiff’s cause of action is the termination of the defendant’s right to continue in possession. forcible entry. If, on the other hand, the entry is legal but the possession thereafter became illegal, the case is one of unlawful detainer which must be filed within one year from the date of the last demand.”15

It is a basic rule in civil cases that the party having the burden of proof must establish his case by a preponderance of evidence, which simply means “evidence which is of greater weight or more convincing than that which is offered in opposition to it.”16

In filing forcible entry cases, the law tells us that two allegations are mandatory for the municipal court to acquire jurisdiction: first, the plaintiff must allege prior physical possession of the property, and second, he must also allege that he was deprived of his possession by any of the means provided for in Section 1, Rule 70 of the Rules of Court, i.e., by force, intimidation, threat, strategy or stealth. It is also settled that in the resolution of such a case, what is material is the determination of who is entitled to the physical possession of the property. Indeed, any of the parties who can prove prior possession de facto may recover such possession even from the owner himself since such cases proceed independently of any claim of ownership and the plaintiff needs merely to prove prior possession de facto and undue deprivation thereof. The question of possession is primordial while the issue of ownership is unessential.17

Verily, in ejectment cases, the word “possession” means nothing more than actual physical possession, not legal possession, in the sense contemplated in civil law. The only issue in such cases is who is entitled to the physical or material possession of the property involved, independent of any claim of ownership set forth by any of the party-litigants.18 It does not even matter if the party’s title to property is questionable.19

The Court of Appeals, in its assailed Decision, found that (1) respondents had prior physical possession of the subject properties, and (2) they were deprived thereof by petitioner by means of force, intimidation, threat, strategy or stealth.

We agree in the conclusion of the Court of Appeals.

On the issue of who has prior possession, respondents’ prior physical possession of the subject properties and deprivation thereof are clear from the allegation that they are the owners of the subject properties which petitioner forcibly entered, of which they were unlawfully turned out of possession and for which they pray to be restored in possession.

In ejectment cases, the plaintiff merely needs to prove prior de facto possession and undue deprivation thereof. Respondents in their complaint averred that after they purchased the lots in 1998 they

immediately enclosed the same with a fence. This prior possession of respondents is buttressed by the “Salaysay” of their witness Conrado Santos who stated:

SALAYSAY

“Ako, CONRADO SANTOS, sapat ang gulang, Pilipino at naninirahan sa Cabangan, Zambales, matapos na makapanumpa ng sang-ayon sa pinag-uutos ng batas ay kusang loob na dito ay nagsasalaysay:

1. Kaming dalawa ng aking anak na si Edmund Santos ay inupahan nina Atty. at Mrs. Reynaldo Dantes upang magbakod sa lupang nabili ng kanilang mga kamag anak at kaibigan sa Brgy. San Isidro, Cabangan, Zambales.

2. Binakuran namin ang lupang nasasakupan ng apat na titulo.

3. Ang ginamit naming pambakod ay kawayan, boho, posteng kahoy at barbed wire.

4. Nang kami’y kasalukuyang nagbabakod nakamasid si Antonio Arbizo. Sa katunayan sa Resthouse pa ni Tony Arbizo kami kumain ng aming meryenda sa tabi ng nasabing lupa.

5. Nang kami ay kasalukuyang nagbabakod, wala namang nagbawal o tumanggi sa aming ginagawa at maayos at mapayapa naming nabakuran ang lupang nasasakupan ng apat na titulo.

6. Sa katunayan nagtagal ang aming ibinakod hanggang sa ito’y sinira at pinalitan ng konkreto sa pag-uutos ni Antonio Arbizo.”20

Irrefragably, the above affidavit fortifies respondents’ claim that they possessed the subject properties in 1998 earlier than the petitioner who came to the premises later on in the year 2000. Notably, petitioner failed to rebut the contents of the above affidavit. Thus it should be given evidentiary value. The Rule on Summary Procedure precisely provides for the submission by the parties of affidavits and position papers and enjoins courts to hold hearings only when it is necessary to do so to clarify factual matters. This procedure is in keeping with the objective of the Rule: to promote the expeditious and inexpensive determination of cases.21 Worthy of note is that an action for forcible entry is a quieting process that is summary in nature. It is designed to recover physical possession through speedy proceedings that are restrictive in nature, scope and time limits.22

As to whether respondents were deprived of possession by force, intimidation, strategy or stealth, the acts of the petitioner in unlawfully entering the subject properties, erecting a structure thereon and excluding therefrom the prior possessor would necessarily imply the use of force. In order to constitute force, the trespasser does not have to institute a state of war. As expressly stated in David v. Cordova:23

“The words “by force, intimidation, threat, strategy or stealth” include every situation or condition under which one person can wrongfully enter upon real property and exclude another, who has had prior possession therefrom. If a trespasser enters upon land in open daylight, under the very eyes of the person already clothed with lawful possession, but without the consent of the latter, and there plants himself and excludes such prior possessor from the property, the action of forcible entry and detainer

can unquestionably be maintained, even though no force is used by the trespasser other than such as is necessarily implied from the mere acts of planting himself on the ground and excluding the other party.”

All told, after due consideration of the evidence presented by the parties in this case and the applicable jurisprudence, we hold that the Court of Appeals correctly found respondents to have a superior right of possession over the subject properties.

We emphasize that our disquisition in this case is provisional and only to the extent necessary to determine who between the parties has the better right of possession.24 In an appropriate proceeding before the court having jurisdiction, petitioner may still have the sale of the subject property to respondents annulled, and the latter’s title cancelled if petitioner’s case is truly meritorious.

Additionally, it must also be remembered that the subject property is registered under the Torrens System in the names of the respondents whose title to the property is presumed legal and cannot be collaterally attacked, less so in an action for forcible entry.

In passing, it must be stressed that the jurisdiction of Supreme Court in cases brought before it from the Court of Appeals via Rule 45, as in this case, is limited to reviewing errors or questions of law. Where factual matters are involved, it is well-settled that a question of fact is to be determined by the evidence to support the particular contention. As found by the Court of Appeals, the evidence adduced on this score are in respondents’ favor. Whether such conclusion of the Court of Appeals was supported by the evidence presented before it is also factual in nature. It is the burden of the party seeking review of a decision of the Court of Appeals or other lower tribunals to distinctly set forth in his petition for review, not only the existence of questions of law fairly and logically arising therefrom, but also questions substantial enough to merit consideration, or show that there are special and important reasons warranting the review that he seeks. If these are not shown prima facie in his petition, this Court will be justified in summarily spurning the petition as lacking in merit.

Admittedly, there are recognized exceptions to this rule when the evidence presented during the trial may be examined and the factual matters resolved by this Court. Among these exceptional circumstances is when the findings of fact of the appellate court differ from those of the trial court.25

Nonetheless, the exception is not applied unqualifiedly. In Bank of Commerce v. Serrano,26 we held that this Court does not, of itself, automatically delve into the record of a case to determine the facts anew where there is disagreement between the findings of fact by the trial court and by the Court of Appeals. When the disagreement is merely on the probative value of the evidence, i.e., which is more credible of two versions, we limit our review to only ascertaining if the findings of the Court of Appeals are supported by the records. So long as the findings of the appellate court are consistent with and not palpably contrary to the evidence on record, we shall decline to make a review on the probative value of such evidence. The findings of fact of the Court of Appeals, and not those of the trial court, will be considered final and conclusive, even in this Court. In this case, we find no cogent reason to disturb the foregoing factual findings of the Court of Appeals holding respondents entitled to the possession of the subject properties.

WHEREFORE, premises considered, the instant Petition is DENIED for lack of merit. The Decision of the Court of Appeals dated 31 January 2006 in CA-G.R. SP No. 86456 is AFFIRMED. Costs against petitioner.

SO ORDERED.

Ynares-Santiago (Chairperson), Austria-Martinez, Nachura and Reyes, JJ., concur.

Petition denied, judgment affirmed.

G.R. No. 130841. February 26, 2008.*

SPOUSES VIRGINIA G. GONZAGA and ALFREDO GONZAGA, petitioners, vs. COURT OF APPEALS, BIENVENIDO AGAN, and ROWENA AGAN, respondents.

Appeals; Certiorari; Reviews under Rules 45 and 65 of the Rules of Court are mutually exclusive and the remedy of certiorari under Rule 65 cannot be made a substitute for a petitioner’s failure to timely appeal under Rule 45.—The proper remedy in the instant case should have been the filing of a petition for review under Rule 45. This Court has repeatedly ruled that reviews under Rules 45 and 65 of the Rules of Court are mutually exclusive and the remedy of certiorari under Rule 65 cannot be made a substitute for a petitioner’s failure to timely appeal under Rule 45. Thus, under Sec. 5(f) of Rule 56, a petition for certiorari interposed when an appeal is proper and available may be dismissed.

Actions; Ejectment; Forcible Entry; When the law speaks of possession, the reference is to prior physical possession or possession de facto, as contra-distinguished from possession de jure—for a complaint for forcible entry to prosper, the plaintiff must allege in his complaint that he had prior physical possession of the land and that the defendant unlawfully deprived him of such possession through any of the grounds provided in Rule 70, Sec. 1.—It is quite clear from the foregoing provision that for a forcible entry suit to prosper, the person lawfully entitled to the possession of the property must allege and prove that he was deprived of such possession by means of force, intimidation, threat, strategy, or stealth. And when the law speaks of possession, the reference is to prior physical possession or possession de facto, as contra-distinguished from possession de jure. To borrow from Justice Edgardo Paras, for a complaint for forcible entry to prosper, the plaintiff must allege in his complaint that he had prior physical possession of the land and that the defendant unlawfully deprived him of such possession through any of the grounds provided in Rule 70, Sec. 1.

Same; Same; Same; Words and Phrases; Possession de facto and possession flowing from ownership are different legal concepts.—Petitioners’ claim that they have prior physical possession by virtue of their absolute ownership of the subject land is untenable. Obviously, they equate possession as an attribute of ownership to the fact of actual possession. They are of course wrong, possession de facto and possession flowing from ownership are different legal concepts.

Same; Same; Same; Accion Publiciana; An accion publiciana is a plenary action for recovery of possession in ordinary civil proceedings in order to determine the better and legal right to possess, independently of title—it differs from a forcible entry action in that it does not require prior physical possession in order to prosper.—We agree with the CA and RTC that the proper remedy in the instant case is to file an

accion publiciana case, a plenary action for recovery of possession in ordinary civil proceedings in order to determine the better and legal right to possess, independently of title. It differs from a forcible entry action in that it does not require prior physical possession in order to prosper. Additionally, considering that more than one (1) year has already elapsed from the time that possession of the subject land was allegedly taken from petitioners, and that an action for forcible entry may only be filed within one (1) year from the plaintiff’s deprivation of possession of the land, an accion publiciana is the only remedy available to petitioners now to determine who has the better right to possession of the land.

SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.

The facts are stated in the opinion of the Court.

Bernabe B. Alabastro for petitioner.

Lucilo B. Sarona, Jr. for private respondents.

VELASCO, JR., J.:

The Case

This Petition for Certiorari under Rule 65 seeks to reverse and set aside the Resolution dated April 10, 19971 of the Court of Appeals (CA) in CA-G.R. SP No. 43793, denying the petition for review of petitioners-spouses Virginia and Alfredo Gonzaga of the Decision dated December 20, 1996 of the Davao City Regional Trial Court (RTC), Branch 33; and the Resolution dated August 29, 19972 of the CA, denying petitioners’ Motion for Reconsideration.

The Facts

Petitioners are the registered owners of a residential lot covered by Transfer Certificate of Title No. T-240379,3 with an area of 247 square meters, more or less, and located in Ecoland Subdivision, Phase IV, Matina, Davao City. Petitioners admitted that they do not reside at this property.4

In May 1995, petitioners decided to construct a house on the said parcel of land and engaged the services of a civil engineer to prepare the corresponding construction plan. Petitioners claimed that there was no occupant on the land when construction began in June 1995.

Sometime in June 1995, petitioners went to inspect the above lot and discovered that a shanty belonging to private respondents Bienvenido and Rowena Agan had been built on the land in question.

A demand later made on private respondents to vacate the lot in question went unheeded.5

Thus, on April 26, 1996, petitioners filed a Complaint dated April 18, 19966 against private respondents for Forcible Entry, Damages, and Attorney’s Fees with Prayer for Temporary Restraining Order and Preliminary Injunction with the Municipal Trial Court in Cities (MTCC) in Davao City. The case entitled Spouses Virginia Gonzaga and Alfredo Gonzaga v. Bienvenido Agan and Rowena Agan was docketed as

Civil Case No. 3001-E-96. As alleged by petitioners, private respondents put up the structure by stealth and strategy.

In their Answer dated June 10, 1996,7 private respondents alleged that they are the occupants of a portion of what is known as the “Sabroso Village.” They further alleged that their shanty is within the land covered by a Free Patent Application dated February 9, 1992 in the name of Ponciano Sabroso,8 who knew of the shanty’s existence for a long time and consented to their stay in the village.

The Ruling of the MTCC

Thereafter, the MTCC rendered a Decision dated August 26, 19969 in favor of petitioners, the dispositive portion of which states:

“WHEREFORE, judgment is hereby rendered in favor of the plaintiffs, the spouses Virginia G. Gonzaga and Alfredo Gonzaga, and against the defendants Bienvenido Agan and Rowena Agan, ordering the defendants to vacate plaintiffs’ property covered by TCT No. T-240379 and to remove their improvements and structures, or shanty therefrom, and further defendants are ordered to pay plaintiffs the reasonable value of the use of the land occupied by them, at P1,000.00 a month, from June 1995, until they vacate, and the sum of P10,000.00 for attorney’s fees, and pay the costs.

SO ORDERED.”

In so ruling, the MTCC held that private respondents failed to rebut allegations that they entered petitioners’ property by stealth. The MTCC found as untenable private respondents’ counter-allegation that they gained entry to the land in 1983 that is allegedly covered by the Free Patent Application of Ponciano Sabroso.

The Decision of the RTC

Unconvinced, private respondents appealed the above MTCC ruling to the Davao City RTC docketed as Civil Case No. 24,772-96. Eventually, the RTC rendered a Decision dated December 20, 1996, the dispositive portion of which reads:

“WHEREFORE, in view of all the foregoing, the appealed decision is REVERSED and judgment is entered dismissing the complaint for lack of cause of action for forcible entry.

The counterclaim is likewise dismissed.

No costs.

SO ORDERED.”10

The RTC predicated its ruling on the premise that petitioners, although claiming to be owners of the subject property, failed to prove prior actual physical possession, a necessary element in an action for ejectment. To the RTC, petitioners should have not commenced an action for forcible entry but an accion publiciana suit.

Thus, petitioners filed with the CA on March 4, 1997 a petition for review docketed as CA-G.R. SP No. 43793.

The Ruling of the CA

On April 10, 1997, the CA issued the first assailed Resolution, denying due course to petitioners’ petition for review mainly on the strength of the following observations:

“A perusal of the complaint would show that apart from claiming ownership of the lot in question, petitioners have not asserted prior possession thereof, much less the manner of their dispossession, which is essential in an action for forcible entry.

As correctly pointed out by respondent Court, plaintiffs’ action should be one for recovery of possession or an accion publiciana, not for forcible entry.11

From this Resolution, petitioners sought reconsideration. However, the CA, in its second assailed Resolution dated August 29, 1997, denied petitioners’ Motion for Reconsideration.

Hence, we have this Petition for Certiorari.

The Issues

The issues raised in the petition are set forth in the following assignment of errors:

I.

The court a quo committed grave abuse of discretion in failing to give due course to the petition for review filed therewith as it committed a gross mistake in appreciating the facts of the case.

II.

The court a quo erred in holding that petitioners’ action should not be for forcible entry but for accion publiciana.12

The Ruling of this Court

The petition must be dismissed.

At the outset, it must be pointed out that petitioners invoked the certiorari jurisdiction of the Court under Rule 65 when an appeal under Rule 45 is the proper remedy and should have been filed.

Under the first paragraph of Section 1 of Rule 65, the remedy of certiorari may only be availed of in the absence of any other remedy in the ordinary course of law open to the petitioner. The provision states:

“Section 1. Petition for certiorari.—When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.” (Emphasis supplied.)

In the instant case, the CA had already finally disposed of the case with the issuance of the Resolution dated April 10, 1997 denying due course to petitioners’ petition for review of the RTC’s decision, and the Resolution dated August 29, 1997 denying petitioners’ Motion for Reconsideration. Thus, the remedy of an appeal under Rule 45 was then already available to petitioners.

Sec. 1 of Rule 45 states:

Filing of petition with Supreme Court.

The petition shall raise only questions of law which must be distinctly set forth.”

Petitioners, therefore, then had 15 days from their receipt on September 10, 1997 of the Resolution dated August 29, 1997, or until September 25, 1997 within which to file a petition for review under Rule 45. Instead, they filed on September 25, 1997 the instant Petition for Certiorari dated September 18, 1997.

Clearly, the proper remedy in the instant case should have been the filing of a petition for review under Rule 45. This Court has repeatedly ruled that reviews under Rules 45 and 65 of the Rules of Court are mutually exclusive and the remedy of certiorari under Rule 65 cannot be made a substitute for a petitioner’s failure to timely appeal under Rule 45.13 Thus, under Sec. 5(f) of Rule 56,14 a petition for certiorari interposed when an appeal is proper and available may be dismissed.

The foregoing notwithstanding, even if we overlook the procedural infirmity of the instant petition and treat it as an appeal under Rule 45, the recourse must still be dismissed.

As it were, the issues raised by petitioners revolve around the matter of possession before private respondents allegedly entered forcibly the property. Petitioners argue that, contrary to the findings of the CA and RTC, they had prior possession of the subject property. Pursuing the point, petitioners state that absolute ownership necessarily connotes possession.

Petitioners’ posture is specious.

Sec. 1 of Rule 70 prescribes the rules when an action for forcible entry and unlawful detainer is proper, thus:

“Section 1. Who may institute proceedings, and when.—Subject to the provisions of the next succeeding section, a person deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, or a lessor, vendor or vendee or other person, against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied, or the legal representatives or assigns of any such lessor, vendor, vendee, or other person, may, at any time within one (1) year after such unlawful deprivation or withholding of possession, bring an action in the proper Municipal Trial Court against the person or person unlawfully withholding or depriving of possession, or any person or persons claiming under them, for the restitution of such possession, together with damages and costs.” (Emphasis supplied.)

It is quite clear from the foregoing provision that for a forcible entry suit to prosper, the person lawfully entitled to the possession of the property must allege and prove that he was deprived of such possession by means of force, intimidation, threat, strategy, or stealth. And when the law speaks of possession, the reference is to prior physical possession or possession de facto, as contra-distinguished from possession de jure.

To borrow from Justice Edgardo Paras, for a complaint for forcible entry to prosper, the plaintiff must allege in his complaint that he had prior physical possession of the land and that the defendant unlawfully deprived him of such possession through any of the grounds provided in Rule 70, Sec. 1.15

The requirement of prior physical possession in ejectment cases was explained by this Court in Mediran v. Villanueva, to wit:

“Juridically speaking, possession is distinct from ownership, and from this distinction are derived legal consequences of much importance. In giving recognition to the action of forcible entry and detainer the purpose of the law is to protect the person who in fact has actual possession; and in case of controverted right, it requires the parties to preserve the status quo until one or the other of them sees fit to invoke the decision of a court of competent jurisdiction upon the question of ownership. It is obviously just that the person who has first acquired possession should remain in possession pending this decision; and the parties cannot be permitted meanwhile to engage in a petty warfare over the possession of the property which is the subject of dispute. To permit this would be highly dangerous to individual security and disturbing to social order. Therefore, where a person supposes himself to be the owner of a piece of property and desires to vindicate his ownership against the party actually in possession, it is incumbent upon him to institute an action to this end in a court of competent jurisdiction; and he can not be permitted, by invading the property and excluding the actual possessor, to place upon the latter the burden of instituting an action to try the property right.”16 (Emphasis supplied.)

In Heirs of Pedro Laurora v. Sterling Technopark III, the Court stressed the basic inquiry in forcible entry cases:

“The only issue in forcible entry cases is the physical or material possession of real property––possession de facto, not possession de jure. Only prior physical possession, not title, is the issue. If ownership is

raised in the pleadings, the court may pass upon such question, but only to determine the question of possession.”17

Of the same tenor, but formulated a bit differently, is what the Court wrote in Bejar v. Caluag:

“To make out a suit for illegal detainer or forcible entry, the complaint must contain two mandatory allegations: (1) prior physical possession of the property by the plaintiff; and (2) deprivation of said possession by another by means of force, intimidation, threat, strategy or stealth. This latter requirement implies that the possession of the disputed property by the intruder has been unlawful from the very start. Then, the action must be brought within one year from the date of actual entry to the property or, in cases where stealth was employed, from the date the plaintiff learned about it.”18 (Emphasis supplied.)

Clearly then, complainants in forcible entry cases must allege and eventually prove prior physical possession. Else, their cases fail, as here.

Petitioners’ claim that they have prior physical possession by virtue of their absolute ownership of the subject land is untenable. Obviously, they equate possession as an attribute of ownership to the fact of actual possession. They are of course wrong, possession de facto and possession flowing from ownership are different legal concepts.

We agree with the CA and RTC that the proper remedy in the instant case is to file an accion publiciana case, a plenary action for recovery of possession in ordinary civil proceedings in order to determine the better and legal right to possess, independently of title.19 It differs from a forcible entry action in that it does not require prior physical possession in order to prosper. Additionally, considering that more than one (1) year has already elapsed from the time that possession of the subject land was allegedly taken from petitioners, and that an action for forcible entry may only be filed within one (1) year from the plaintiff’s deprivation of possession of the land, an accion publiciana is the only remedy available to petitioners now to determine who has the better right to possession of the land.

WHEREFORE, we DISMISS the petition, and AFFIRM the CA’s Resolutions dated April 10, 1997 and August 29, 1997 in CA-G.R. SP No. 43793.

Costs against petitioners.

SO ORDERED.

Quisumbing (Chairperson), Carpio, Carpio-Morales and Tinga, JJ., concur.

Petition dismissed, resolutions affirmed.

G.R. No. 176995. July 30, 2008.*

PABLO D. ACAYLAR, JR., petitioner, vs. DANILO G. HARAYO, respondent.

Appeals; Pleadings and Practice; Docket Fees; In appealed cases, failure to pay the docketing fees does not automatically result in the dismissal of the appeal; the dismissal is discretionary on the part of the appellate court.—In appealed cases, failure to pay the docketing fees does not automatically result in the dismissal of the appeal; the dismissal is discretionary on the part of the appellate court. Section 5, Rule 141 of the Revised Rules of Court provides that “If the fees are not paid, the court may refuse to proceed with the action until they are paid and may dismiss the appeal or the action or proceedings.” Petitioner explained in his Motion for Reconsideration before the Court of Appeals that he relied in good faith on the computation provided by the Clerk of Court of Zamboanga with whom he inquired as regards the amount of docket fees due. He had previously paid P4,030.00 and was short of only P500.00, which he also immediately paid upon being informed of the deficiency. Given the circumstances, petitioner should have been granted leniency by the Court of Appeals on this matter.

Same; Same; Statement of Material Dates; Failure to state the material dates is not fatal to his cause of action, provided the date of his receipt, of the Regional Trial Court Resolution denying his Motion for Reconsideration is duly alleged in his Petition.—We also agree with the petitioner that failure to state the material dates is not fatal to his cause of action, provided the date of his receipt, i.e., 9 May 2006, of the RTC Resolution dated 18 April 2006 denying his Motion for Reconsideration is duly alleged in his Petition. In the recent case of Great Southern Maritime Services Corporation v. Acuña, 452 SCRA 422 (2005), we held that “the failure to comply with the rule on a statement of material dates in the petition may be excused since the dates are evident from the records.” The more material date for purposes of appeal to the Court of Appeals is the date of receipt of the trial court’s order denying the motion for reconsideration. The other material dates may be gleaned from the records of the case if reasonably evident.

Same; Same; Statement of Facts and Law; A petitioner’s failure to strictly follow the required form for presenting the facts and the law of his case is excusable where his petition consists of only five pages presenting concisely enough the facts and law supporting his case.—Likewise excusable is petitioner’s failure to strictly follow the required form for presenting the facts and law of his case before the Court of Appeals. His Petition before the appellate court consists of only five pages, presenting concisely enough the facts and law supporting his case.

Same; Same; Procedural Rules and Technicalities; Judicial cases do not come and go through the portals of a court of law by the mere mandate of technicalities.—The parties are now given the amplest opportunity to fully ventilate their claims and defenses brushing aside technicalities in order to truly ascertain the merits of this case. Indeed, judicial cases do not come and go through the portals of a court of law by the mere mandate of technicalities.

Where a rigid application of the rules will result in a manifest failure or miscarriage of justice, technicalities should be disregarded in order to resolve the case.

Actions; Ejectment; Words and Phrases; “Forcible Entry” and “Unlawful Detainer,” Distinguished.—Under the above provision, there are two entirely distinct and different causes of action, to wit: (1) a case for forcible entry, which is an action to recover possession of a property from the defendant whose occupation thereof is illegal from the beginning as he acquired possession by force, intimidation, threat, strategy or stealth; and (2) a case for unlawful detainer, which is an action for recovery of possession from defendant whose possession of the property was inceptively lawful by virtue of a contract (express or implied) with the plaintiff, but became illegal when he continued his possession despite the termination of his right thereunder. The distinctions between the two forms of ejectment suits, are: first, in forcible entry, the plaintiff must prove that he was in prior physical possession of the premises until he was deprived thereof by the defendant, whereas, in unlawful detainer, the plaintiff need not have been in prior physical possession; second, in forcible entry, the possession of the land by the defendant is unlawful from the beginning as he acquires possession thereof by force, intimidation, threat, strategy or stealth, while in unlawful detainer, the possession of the defendant is inceptively lawful but it becomes illegal by reason of the termination of his right to the possession of the property under his contract with the plaintiff; third, in forcible entry, the law does not require a previous demand for the defendant to vacate the premises, but in unlawful detainer, the plaintiff must first make such demand, which is jurisdictional in nature.

Same; Same; Forcible Entry; The fact of prior physical possession is an indispensable element in forcible entry cases—the plaintiff must prove that he was in prior physical possession of the premises long before he was deprived thereof by the defendant.—In a long line of cases, this Court reiterated that the fact of prior physical possession is an indispensable element in forcible entry cases. The plaintiff must prove that he was in prior physical possession of the premises long before he was deprived thereof by the defendant. It must be stressed that plaintiff cannot succeed where it appears that, as between himself and the defendant, the latter had possession antedating his own. To ascertain this, it is proper to look at the situation as it existed long before the first act of spoliation occurred in order to intelligibly determine whose position is more in accord with the surrounding circumstances of the case and the applicable legal principles. Such determination in this case requires a review of factual evidence, generally proscribed in a petition like this. However, where the factual findings of the courts a quo are contrary to each other, this Court may intervene to resolve the conflict and settle the factual issues raised by the parties.

Same; Same; Same; A person would not, for a reason so shallow as a whim, encroach upon another’s property and gather fruits and other agricultural products therefrom, thereby risking criminal prose-cution and civil liabilities.—We are not persuaded by respondent’s assertion that after he took possession of the subject property from the Zoila spouses, petitioner entered the subject property on a whim, for not only does such postulation lack clear, positive, and convincing evidentiary support, but also because it is illogical and contrary to common human experience. A person would not, for a reason so shallow as a whim, encroach upon another’s property and gather fruits and other agricultural products therefrom, thereby risking criminal prosecution and civil liabilities. The more plausible and

logical scenario would be that petitioner was already occupying the subject property prior to the sale. Petitioner, in gathering the coconut fruits and other crops, cutting grasses, and domesticating animals on the subject property, even after its sale to respondent on 14 September 2004, was only continuing to exercise acts of possession over the subject property as he had done in years before.

Same; Same; It is long settled that the only question that the courts must resolve in ejectment proceedings is—who is entitled to the physical or material possession of the property, that is, possession de facto; and they should not involve the question of ownership or of possession de jure, which is to be settled in the proper court and in a proper action.—Both the MTCC and the RTC decided in favor of respondent since they considered him to have been vested with possession of the subject property by virtue of the execution of the Deed of Sale on 14 September 2004. However, such a ruling violates one of the most basic doctrines in resolving ejectment cases. We had long settled that the only question that the courts must resolve in ejectment proceedings is—who is entitled to the physical or material possession of the property, that is, possession de facto; and they should not involve the question of ownership or of possession de jure, which is to be settled in the proper court and in a proper action.

Same; Same; Possession by Tolerance; The rule is that possession by tolerance is lawful, but such possession becomes unlawful upon demand to vacate made by the owner and the possessor by tolerance refuses to comply with such demand; The absence of demand to vacate precludes the Court from treating this case, originally instituted as one for forcible entry, as one of unlawful detainer, since demand to vacate is jurisdictional in an action for unlawful detainer.—The conflicting Affidavits of Zoila Acaylar, notwithstanding, we find that petitioner was in peaceful possession of the subject property prior to its sale to respondent. Even if petitioner was not authorized by Zoila Acaylar to possess the subject property as administrator, his possession was not opposed and was, thus, tolerated by his parents. As we ruled in Arcal v. Court of Appeals, 285 SCRA 34 (1998): The rule is that possession by tolerance is lawful, but such possession becomes unlawful upon demand to vacate made by the owner and the possessor by tolerance refuses to comply with such demand. A person who occupies the land of another at the latter’s tolerance or permission, without any contract between them, is necessarily bound by an implied promise that he will vacate upon demand, failing which, a summary action for ejectment is the proper remedy against him. The status of the possessor is analogous to that of a lessee or tenant whose term of lease has expired but whose occupancy continued by tolerance of the owner. In such case, the unlawful deprivation or withholding of possession is to be counted from the date of the demand to vacate. In the instant case, there is no showing that either Zoila Acaylar or respondent made an express demand upon petitioner to vacate the subject property. In the absence of an oral or written demand, petitioner’s possession of the subject property has yet to become unlawful. The absence of demand to vacate precludes us from treating this case, originally instituted as one for forcible entry, as one of unlawful detainer, since demand to vacate is jurisdictional in an action for unlawful detainer.

PETITION for review on certiorari of the decision and resolution of the Court of Appeals.

The facts are stated in the opinion of the Court.

Dioscoro C. Elumbaring for petitioner.

Cres N. Palpagan, Jr. for respondent.

CHICO-NAZARIO, J.:

Before this Court is a Petition for Review on Certiorari1 under Rule 45 of the Revised Rules of Court filed by petitioner Pablo D. Acaylar, Jr., seeking the reversal and the setting aside of the Resolutions2 dated 28 July 2006 and 30 January 2007 of the Court of Appeals in CA-G.R. SP No. 01077-MIN. The appellate court, in its assailed Resolution dated 28 July 2006, dismissed petitioner’s Petition for Review on Certiorari therein on technical grounds; thus, it affirmed the Decision dated 20 January 2006 of the Regional Trial Court (RTC) of Dipolog City, Branch 9, in Civil Case No. 6087, which, in turn, affirmed the Decision3 dated 28 March 2005 of the Municipal Trial Court in Cities (MTCC) of Dapitan City, in Civil Case No. 622, awarding possession of the subject property to respondent Danilo G. Harayo on the ground that he is the lawful possessor thereof. In its assailed Resolution dated 30 January 2007, the Court of Appeals refused to reconsider its earlier Resolution of 28 July 2006.

The subject property is a parcel of land designated as Lot 741-B-1 situated in Tolon, Potungan, Dapitan City, with an area of 30,000 square meters, described and bounded as follows:

“Lot 741-B-1 of the Sketch Plan, situated at Tolon, Potungan, Dapitan City, containing an area of 30,000 square meters, bounded on the N., by Tolon River; on the South by Lot 741-A; on the E by Lot 741-B-2; and on the West by the Municipal Road, and embraced in OCT No.–(P-14969)-1119.”4

In his Complaint filed with the MTCC, and docketed as Civil Case No. 622, respondent alleged that he acquired the subject property from the spouses Pablo Acaylar, Sr., and Zoila Dangcalan Acaylar (the spouses Acaylar) by virtue of a Deed of Sale executed on 14 September 2004. On the same day, respondent took possession of the subject property. On 19 September 2004, one of the spouses Acaylar’s sons, the petitioner, using strategy, intimidation, threats and stealth, entered the subject property, cut the tall grasses in the coconut plantation therein, gathered the fallen coconuts and other fruits, and pastured his cows and other animals thereon.5

In his Answer, petitioner countered that the subject property claimed by respondent is a portion of the entire property owned by petitioner’s parents, the spouses Acaylar, with a total area of 59,775 square meters. Petitioner is in possession of his parents’ entire property since 1979 as administrator thereof. He built his house on the property and farmed the land. Respondent cannot definitively claim which portion of the entire property he was able to buy from the spouses Acaylar since the same was not clearly delineated.6 In addition, petitioner, together with his sisters, Rosario Acaylar Herrera and Asteria Acaylar, already filed against respondent and his spouse Beatriz Harayo a case for annulment of the Deed of Sale dated 14 September 2004, with prayer for preliminary injunction and damages, presently pending before the RTC, Branch 6.

During the Pre-Trial Conference held before the MTCC on 17 February 2005, the parties stipulated that the spouses Acaylar sold to respondent only a 30,000-square-meter portion of their entire property; and that there is a pending civil case before the RTC on the validity of the sale of the subject property.

Among the pieces of evidence presented by respondent before the MTCC was an Affidavit of Zoila Acaylar (First Affidavit) attesting that she sold the subject property to respondent for consideration and she did not give petitioner authority to either administer or remain on her and her husband’s property.

After trial, the MTCC rendered a Decision7 on 28 March 2005, awarding to respondent the possession of the subject property. The MTCC gave credence to respondent’s claim that he took immediate possession of the subject property after the execution of the Deed of Sale but was ousted therefrom by petitioner who invoked the alleged authority granted to him by Zoila Acaylar as the administrator of the unsold portion of her and her husband’s property. The MTCC referred to the First Affidavit executed by Zoila Acaylar wherein she refuted that she gave petitioner authority or designated him as the administrator of her and her husband’s property. Zoila Acaylar further admitted therein that the subject property was already sold to respondent. For lack of any legal right to remain on the subject property, the MTCC adjudged that petitioner’s possession of the same was illegal. The dispositive portion of the MTCC Decision reads:

“WHEREFORE, judgment is hereby rendered, by preponderance of evidence in favor of the [herein respondent] as against the [herein petitioner], and hereby orders:

(1) For [petitioner] and all other persons who may have derived rights from him to vacate lot 741-B-1 containing an area of 30,000 square meters as shown in the sketch plan prepared by Christopher Palpagan and turn over peaceful possession thereof to [herein respondent];

(2) For [petitioner] to pay [respondent] the amount of P5,000.00 as attorney’s fees and P 1,591.25 as costs of the suit. All other claims and counterclaims are hereby dismissed for lack of merit.”8

On appeal, docketed as Civil Case No. 6087, the RTC promulgated its Decision9 dated 20 January 2006 affirming the award of possession in favor of respondent after finding that the appealed MTCC Decision was based on facts and law on the matter. The RTC declared that the sale of the subject property by the spouses Acaylar to respondent vested ownership and possession of said property in the latter. Thus, petitioner’s acts of entering the subject property, cutting the tall grasses and gathering the agricultural products therein, constitute forcible entry, which gave rise to an action for ejectment. The RTC decreed:

“WHEREFORE, premises considered, [the RTC] finds by preponderance of evidence that [herein respondent] is in physical possession of the [subject property] that is on September 14, 2004 prior to the [herein petitioner] on September 19, 2004 and therefore affirms the decision of the Municipal Trial Court in the City of Dapitan without modification.”10

Banking on another Affidavit (Second Affidavit) executed by Zoila Acaylar, in which she recanted the statements she made in her First Affidavit denying that she designated petitioner as the administrator of her and her husband’s property, petitioner moved for the reconsideration of the 20 January 2006 Decision of the RTC. The RTC, however, issued a Resolution11 dated 18 April 2006 denying petitioner’s Motion for Reconsideration.

Consequently, petitioner filed a Petition for Review on Certiorari12 with the Court of Appeals where it was docketed as CA-G.R. SP No. 01077-MIN. Petitioner argued in his Petition that the RTC gravely erred in ruling that respondent was in prior possession of the subject property based solely on the Deed of Sale executed by the spouses Acaylar in respondent’s favor. Petitioner also asserted therein that the RTC gravely abused its discretion when it did not give credence to the Second Affidavit executed by Zoila Acaylar.13

On 28 July 2006, the Court of Appeals issued a Resolution14 dismissing outright CA-G.R. SP No. 01077-MIN for failure of petitioner to avail himself of the correct remedy under the law. Petitioner should have filed a Petition for Review under Rule 42 of the Revised Rules of Court, the proper remedy to appeal the adverse decisions rendered by the RTC in its appellate capacity. Instead, petitioner erroneously filed a Petition for Review on Certiorari15 to assail the 20 January 2006 Decision and 8 April 2006 Resolution of the RTC in Civil Case No. 6087. The Court of Appeals also noted non-compliance by petitioner and his counsel with several more requirements for filing a petition with the Court of Appeals, namely: (a) shortage in the payment of the docket fees; (b) failure of petitioner’s counsel to indicate the place of issue of his Integrated Bar of the Philippines (IBP) number and his complete address; (3) failure of petitioner to furnish the appellate court which rendered the assailed decision, in this case the RTC, a copy of the Petition; and (4) failure of the Petition to state the material dates.

The Court of Appeals, in a Resolution16 dated 30 January 2007, denied for lack of merit the Motion for Reconsideration interposed by petitioner. The appellate court, however, excused the mistake of petitioner in the designation of the pleading as a Petition for Review on Certiorari, since it was clear from petitioner’s Motion for Extension to file Petition for Review that he wished to avail himself of the remedy provided under Rule 42 of the Revised Rules of Court.

Petitioner is now before this Court via the Petition at bar, making the following assignment of errors:

I.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN DENYING THE PETITION DESPITE ADEQUATE EXPLANATION SUBMITTED BY THE PETITIONER ON THE TECHNICALITIES ASSIGNED TO THE PETITIONER;

II.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN READING SHORT THE GIST OF THE PETITION WHEN IT RULED THAT SPECIFIC MATTERS INVOLVED IN THE CASE WERE INDICATED IN THE PETITION;

III.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT ANNEXES WERE NOT ATTACHED WHEN THEY ARE DULY ATTACHED;

IV.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FAILING TO EVALUATE THE PROPRIETY (SIC) FORCIBLE ENTRY CASE WHICH IS THE ORIGINAL ACTION INVOLVED IN THIS CASE VIS-À-VIS UNLAWFUL DETAINER.17

The Court first addresses the procedural issues involved in the present case.

The Court of Appeals pointed several procedural defects of petitioner’s Petition for Review therein. Petitioner’s payment of docket fees was short of P500.00. It is also evident after a perusal of the records that petitioner failed to indicate in his Petition with the Court of Appeals the material dates to establish when he received notice of the assailed RTC Decision and when he filed his motion for reconsideration thereof with the RTC, as required by Section 2, Rule 4218 of the Revised Rules of Court. Petitioner further failed to set forth concisely a statement of the matters involved in the case in accordance with the same provision. Finally, petitioner did not furnish the RTC, the court which rendered the assailed decision, a copy of the Petition he filed with the Court of Appeals.19

Petitioner, however, submits that he raised meritorious arguments in his Petition with the Court of Appeals and, thus, the dismissal thereof on a mere technicality would cause a miscarriage of justice. The petitioner invokes considerations of substantial justice and prays that this Court give his Petition due course and set aside the Court of Appeals Resolutions dated 28 July 2006 and 30 January 2007 in CA-G.R. SP No. 01077-MIN.

Respondent counters that the Court of Appeals did not commit any reversible error in dismissing the Petition in CA-G.R. SP No. 01077-MIN and adopted the discussion of the appellate court in his Memorandum.

In appealed cases, failure to pay the docketing fees does not automatically result in the dismissal of the appeal; the dismissal is discretionary on the part of the appellate court.20 Section 5, Rule 141 of the Revised Rules of Court provides that “If the fees are not paid, the court may refuse to proceed with the action until they are paid and may dismiss the appeal or the action or proceedings.” Petitioner explained in his Motion for Reconsideration before the Court of Appeals that he relied in good faith on the computation provided by the Clerk of Court of Zamboanga with whom he inquired as regards the amount of docket fees due. He had previously paid P4,030.00 and was short of only P500.00, which he also immediately paid upon being informed of the deficiency. Given the circumstances, petitioner should have been granted leniency by the Court of Appeals on this matter.

We also agree with the petitioner that failure to state the material dates is not fatal to his cause of action, provided the date of his receipt, i.e., 9 May 2006, of the RTC Resolution dated 18 April 2006 denying his Motion for Reconsideration is duly alleged in his Petition.21 In the recent case of Great Southern Maritime Services Corporation v. Acuña,22 we held that “the failure to comply with the rule on a statement of material dates in the petition may be excused since the dates are evident from the records.” The more material date for purposes of appeal to the Court of Appeals is the date of receipt of

the trial court’s order denying the motion for reconsideration.23 The other material dates may be gleaned from the records of the case if reasonably evident.24

Likewise excusable is petitioner’s failure to strictly follow the required form for presenting the facts and law of his case before the Court of Appeals. His Petition before the appellate court consists of only five pages, presenting concisely enough the facts and law supporting his case.

With respect to petitioner’s failure to furnish the RTC a copy of his Petition with the Court of Appeals, this Court found upon examination of the records that petitioner had already complied with such requirement.25

Accordingly, the parties are now given the amplest opportunity to fully ventilate their claims and defenses brushing aside technicalities in order to truly ascertain the merits of this case. Indeed, judicial cases do not come and go through the portals of a court of law by the mere mandate of technicalities.26 Where a rigid application of the rules will result in a manifest failure or miscarriage of justice, technicalities should be disregarded in order to resolve the case. In Aguam v. Court of Appeals,27 we ruled that:

“The court has [the] discretion to dismiss or not to dismiss an appellant’s appeal. It is a power conferred on the court, not a duty. The “discretion must be a sound one, to be exercised in accordance with the tenets of justice and fair play, having in mind the circumstances obtaining in each case.” Technicalities, however, must be avoided. The law abhors technicalities that impede the cause of justice. The court’s primary duty is to render or dispense justice. “A litigation is not a game of technicalities.” “Law suits, unlike duels, are not to be won by a rapier’s thrust. Technicality, when it deserts its proper office as an aid to justice and becomes its great hindrance and chief enemy, deserves scant consideration from courts.” Litigations must be decided on their merits and not on technicality. Every party litigant must be afforded the amplest opportunity for the proper and just determination of his cause, free from the unacceptable plea of technicalities. Thus, dismissal of appeals purely on technical grounds is frowned upon where the policy of the court is to encourage hearings of appeals on their merits and the rules of procedure ought not to be applied in a very rigid, technical sense; rules of procedure are used only to help secure, not override substantial justice. It is a far better and more prudent course of action for the court to excuse a technical lapse and afford the parties a review of the case on appeal to attain the ends of justice rather than dispose of the case on technicality and cause a grave injustice to the parties, giving a false impression of speedy disposal of cases while actually resulting in more delay, if not a miscarriage of justice.”

In this case, the Court finds that petitioner’s procedural lapses are forgivable and opts to dispose the instant Petition on its merits rather than remand the case to the appellate court, a remand not being necessary where, as in the instant case, the ends of justice would not be served thereby and we are already in a position to resolve the dispute based on the records before us.

We now proceed to discuss the merits of the case.

Relevant in the case at bar is Section 1, Rule 70 of the Revised Rules of Court which provides:

“SECTION 1. Who may institute proceedings, and when.—Subject to the provisions of the next succeeding section, a person deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, or a lessor, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied, or the legal representatives or assigns of any such lessor, vendor, vendee, or other person, may, at any time within one (1) year after such unlawful deprivation or withholding of possession, bring an action in the proper Municipal Trial Court against the person or persons unlawfully withholding or depriving of possession, or any person or persons claiming under them, for the restitution of such possession, together with damages and costs.”

Under the above provision, there are two entirely distinct and different causes of action, to wit: (1) a case for forcible entry, which is an action to recover possession of a property from the defendant whose occupation thereof is illegal from the beginning as he acquired possession by force, intimidation, threat, strategy or stealth; and (2) a case for unlawful detainer, which is an action for recovery of possession from defendant whose possession of the property was inceptively lawful by virtue of a contract (express or implied) with the plaintiff, but became illegal when he continued his possession despite the termination of his right thereunder.28

The distinctions between the two forms of ejectment suits, are: first, in forcible entry, the plaintiff must prove that he was in prior physical possession of the premises until he was deprived thereof by the defendant, whereas, in unlawful detainer, the plaintiff need not have been in prior physical possession; second, in forcible entry, the possession of the land by the defendant is unlawful from the beginning as he acquires possession thereof by force, intimidation, threat, strategy or stealth, while in unlawful detainer, the possession of the defendant is inceptively lawful but it becomes illegal by reason of the termination of his right to the possession of the property under his contract with the plaintiff; third, in forcible entry, the law does not require a previous demand for the defendant to vacate the premises, but in unlawful detainer, the plaintiff must first make such demand, which is jurisdictional in nature.29

The above distinctions, more importantly the nature of defendant’s entry into the property, are material to the present case in order to ascertain the propriety of respondent’s action for forcible entry filed before the MTCC. It bears to stress that it is the nature of defendant’s entry into the land which determines the cause of action, whether it is forcible entry or unlawful detainer. If the entry is illegal, then the action which may be filed against the intruder is forcible entry. If, however, the entry is legal but the possession thereafter becomes illegal, the case is unlawful detainer.30

In the case at bar, respondent filed an action for forcible entry before the MTCC. Respondent alleged that he took possession of the subject property immediately after the spouses Acaylar executed a Deed of Sale thereof in his favor on 14 September 2004, but was forcibly deprived thereof by petitioner. A case for forcible entry, therefore, is proper since petitioner’s entry into the subject property is already illegal at its incipience.

Petitioner, on the other hand, harps on the fact that he was in possession of the subject property since 1979, having built his house thereon and farmed the land, and it was impossible for him to wrest

possession of the subject property from respondent, for he was already occupying the same way before its alleged sale to respondent. Petitioner, thus, maintains that his possession over the subject property is lawful from the start, as he was authorized by Zoila Acaylar to administer the same, making respondent’s suit for forcible entry before the MTCC the wrong remedy.

In a long line of cases,31 this Court reiterated that the fact of prior physical possession is an indispensable element in forcible entry cases. The plaintiff must prove that he was in prior physical possession of the premises long before he was deprived thereof by the defendant.32 It must be stressed that plaintiff cannot succeed where it appears that, as between himself and the defendant, the latter had possession antedating his own. To ascertain this, it is proper to look at the situation as it existed long before the first act of spoliation occurred in order to intelligibly determine whose position is more in accord with the surrounding circumstances of the case and the applicable legal principles. Such determination in this case requires a review of factual evidence, generally proscribed in a petition like this. However, where the factual findings of the courts a quo are contrary to each other, this Court may intervene to resolve the conflict and settle the factual issues raised by the parties.33

In the instant Petition, the MTCC cited Zoila Acaylar’s First Affidavit in which she attested that she did not appoint or designate petitioner as administrator of her and her husband’s property, and that she gathered the coconuts and harvested other crops from the property by employing farm workers. Since petitioner was never in possession of the subject property, then the MTCC concluded that respondent had taken possession of the same from the spouses Acaylar right after its purchase. The RTC, on the other hand, expressly recognized that petitioner possessed the subject property, but his possession was merely tolerated by his parents, and that respondent, as purchaser of the subject property from the parents, the spouses Acaylar, had better right to the possession of the same. Thus, as to whether petitioner had actual or physical possession of the subject property prior to respondent is a factual issue which we are called upon to resolve, considering that the courts below had contradicting findings.

After careful and thorough recalibration and re-examination of the evidence available on record, we find that petitioner had physical possession of the subject property prior to and at the time of its sale by the spouses Acaylar to respondent. It is actually irrelevant whether petitioner possessed the subject property as the administrator thereof. As the son of the spouses Acaylar, he could very well enter into possession of the subject property either with the express permission or at the tolerance of his parents who owned the property. Petitioner alleged, and respondent did not dispute, that petitioner had entered into possession of his parents’ property as early as 1979, and he even built his house thereon. Although Zoila Acaylar may have attested in her First Affidavit that she did not appoint or designate petitioner as the administrator of her and her husband’s property, she never claimed that petitioner unlawfully or illegally entered her property when he built his house thereon.

We are not persuaded by respondent’s assertion that after he took possession of the subject property from the Zoila spouses, petitioner entered the subject property on a whim, for not only does such postulation lack clear, positive, and convincing evidentiary support, but also because it is illogical and contrary to common human experience. A person would not, for a reason so shallow as a whim, encroach upon another’s property and gather fruits and other agricultural products therefrom, thereby

risking criminal prosecution and civil liabilities. The more plausible and logical scenario would be that petitioner was already occupying the subject property prior to the sale. Petitioner, in gathering the coconut fruits and other crops, cutting grasses, and domesticating animals on the subject property, even after its sale to respondent on 14 September 2004, was only continuing to exercise acts of possession over the subject property as he had done in years before.

Moreover, we note that the subject property was sold to respondent and he supposedly took possession thereof on 14 September 2004; and that petitioner allegedly forced his way into the property on 19 September 2004. This would mean that respondent, after taking over possession of the subject property from petitioner’s parents, possessed the subject property for only five days before being deprived thereof by the petitioner. The very short period when respondent purportedly possessed the subject property renders said possession suspect. It is not clear to us how petitioner took actual possession of the subject property on 14 September 2004.

Neither are we enlightened on the manner in which respondent exercised or demonstrated his physical or material possession over the subject property for the five days before he was reputedly ousted therefrom by petitioner.

Both the MTCC and the RTC decided in favor of respondent since they considered him to have been vested with possession of the subject property by virtue of the execution of the Deed of Sale on 14 September 2004. However, such a ruling violates one of the most basic doctrines in resolving ejectment cases. We had long settled that the only question that the courts must resolve in ejectment proceedings is — who is entitled to the physical or material possession of the property, that is, possession de facto; and they should not involve the question of ownership or of possession de jure, which is to be settled in the proper court and in a proper action.34 As we elucidated in the recent case of Sudaria v. Quiambao:35

Regardless of the actual condition of the title to the property, the party in peaceable quiet possession shall not be thrown out by a strong hand, violence or terror. Neither is the unlawful withholding of property allowed. Courts will always uphold respect for prior possession.

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

Hence, the Deed of Sale conferring ownership of the subject property upon respondent is clearly irrelevant in the case presently before us. The Deed of Sale did not automatically place respondent in physical possession of the subject property. It is thus incumbent upon respondent to establish by evidence that he took physical possession of the subject property from the spouses Acaylar on 14 September 2004 and he was in actual possession of the said property when petitioner forcibly entered the same five days later.

The conflicting Affidavits of Zoila Acaylar, notwithstanding, we find that petitioner was in peaceful possession of the subject property prior to its sale to respondent. Even if petitioner was not authorized by Zoila Acaylar to possess the subject property as administrator, his possession was not opposed and was, thus, tolerated by his parents. As we ruled in Arcal v. Court of Appeals:36

“The rule is that possession by tolerance is lawful, but such possession becomes unlawful upon demand to vacate made by the owner and the possessor by torelance refuses to comply with such demand. A person who occupies the land of another at the latter’s tolerance or permission, without any contract between them, is necessarily bound by an implied promise that he will vacate upon demand, failing which, a summary action for ejectment is the proper remedy against him. The status of the possessor is analogous to that of a lessee or tenant whose term of lease has expired but whose occupancy continued by tolerance of the owner. In such case, the unlawful deprivation or withholding of possession is to be counted from the date of the demand to vacate.”

In the instant case, there is no showing that either Zoila Acaylar or respondent made an express demand upon petitioner to vacate the subject property. In the absence of an oral or written demand, petitioner’s possession of the subject property has yet to become unlawful. The absence of demand to vacate precludes us from treating this case, originally instituted as one for forcible entry, as one of unlawful detainer, since demand to vacate is jurisdictional in an action for unlawful detainer.37

In conclusion, since petitioner was in prior physical possession of the subject property, respondent has no cause of action against petitioner for forcible entry. Neither can we treat respondent’s case against petitioner as one for unlawful detainer absent the jurisdictional requirement of demand to vacate made upon petitioner. However, our dismissal of respondent’s Complaint herein against petitioner is without prejudice to respondent’s filing of the appropriate remedy under the law to acquire possession of the subject property, as well as to the resolution of the civil case pending with the RTC, Branch 6, for the annulment of the Deed of Sale dated 14 September 2004.

WHEREFORE, premises considered, the instant Petition is GRANTED. The Decision dated 28 July 2006 of the Court of Appeals and its Resolution dated 30 January 2007 in CA-G.R. SP No. 01077-MIN are REVERSED and SET ASIDE, and the Complaint of respondent Danilo G. Harayo against petitioner Pablo D. Acaylar before the Municipal Trial Court in Cities of Dapitan City, in Civil Case No. 622, is DISMISSED, without prejudice. No costs.

SO ORDERED.

Ynares-Santiago (Chairperson), Austria-Martinez, Nachura and Reyes, JJ., concur.

Petition granted, judgment and resolution reversed and set aside.

GRACE T. MAGDALUYO and ANGELES CANDELARIO, petitioners, vs. GLORIA M. QUIMPO, EDITHA M. PEREZ, ROBERTO T. MIJARES, VENECIA Q. MIJARES, BUTCH MIJARES, NANETTE MIJARES, JOFELDA M. LASERNA, ESTELA M. RIO, HERMINIA M. MARTELINO, GLICERIO T. MIJARES, EDUARDO M. REYES, MILA R. BALLEZA, MARCELA R. TINAGAN, DOMINGO ICATAR, MANOLITA Q. ACEVEDO, DONNA Q. MIJARES, DINDO Q. MIJARES, LEONARDO Q. MIJARES, and VICTORIO Q. MIJARES, respondents.

Remedial Law; Judgments; Land subject of the petition is part of a bigger parcel that has already been awarded to respondents in a previous case decided with finality by the court.—As correctly pointed out by respondents, the land subject of this petition is part of a bigger parcel that has already been awarded to them in a previous case decided with finality by this Court. Said decision now binds the whole world.

PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the resolution of the Court.

Cyril A. Tagle for petitioners.

Reynaldo M. Quimpo for respondents.

R E S O L U T I O N

QUISUMBING, J.:

For review on certiorari is the decision1 dated January 27, 1999 of the Court of Appeals, in CA-G.R. CV No. 50559 which affirmed in toto the judgment2 dated May 31, 1995 of the Regional Trial Court, 6th Judicial Region, Branch VI, Kalibo, Aklan, in Civil Case No. 4611, for recovery of possession and ownership and declaration of nullity of document of assignment, with damages. The trial court’s judgment reads as follows:

WHEREFORE, in view of the foregoing, judgment is hereby rendered declaring the plaintiffs the lawful owners and possessors of the land in question as described in Exhibit “A”; declaring Exhibit “18” as null and void and ordering defendant Grace T. Magdaluyo to vacate the same and restore plaintiffs to its possession. Defendants are also ordered, jointly and severally, to pay plaintiffs the sum of P3,000.00 as litigation expenses as well as the costs.

SO ORDERED.3

The core of the controversy between the parties relates to the possession and ownership of a parcel of land more particularly described as follows:

Residential land with an area of 462 square meters, more or less, bounded on the North, by Municipal Road; on the East, by plaintiffs’ land; on the South, by land of Anselmo Legaspi; and on the West, by land of plaintiffs.4

In a complaint filed on April 15, 1993 with the Regional Trial Court of Kalibo, Aklan, Branch VI, respondents alleged that they were the lawful owners and possessors of a parcel of land located at Laserna Street, Poblacion, Kalibo, Aklan, particularly described as follows:

Residential land with an area of 6,030 square meters, more or less, bounded on the North by the Municipal road leading to Sook (Aklan) River; on the East, by plaintiffs’ land; on the South, by Anselmo Legaspi; and on the West, by the Sook River; declared in the name of Encarnacion Mijares, deceased, under Tax Declaration or ARP No. 89 01406 that cancelled prior Tax Declaration No. 1767, and assessed at P110,620.00.5

Respondents claimed that while their possession as well as their predecessors-in-interest had been peaceful, public, adverse, exclusive and in good faith with just title, in the concept of owner, for more than forty (40) years, petitioners unlawfully entered the contested portion by constructing a structure without prior consent and knowledge of respondents who were eventually dispossessed of the land. Despite demands to vacate the land and remove the illegal structure, petitioners refused to comply, said the respondents. They added that petitioner Magdaluyo claimed she acquired the land in 1986 from co-petitioner Candelario. Said acquisition was allegedly evidenced by an Assignment of Right and registered in the notarial register of Notary Public Liberato R. Ibadlit. But according to respondents, this Assignment was null and void as Candelario was neither the owner of the contested area nor had she any right or interest therein. They further averred that Magdaluyo was an assignee in bad faith as she fully knew the flaw or defect in the title of her assignor.

For her part, petitioner Magdaluyo alleged that on June 26, 1986, she acquired the rights over the land from co-petitioner Candelario who had been in peaceful, public, open and continuous possession of the land in question for more than thirty (30) years and was the actual possessor thereof. Magdaluyo added that she had a miscellaneous sales application covering the land which was given due course by the Bureau of Lands. She also said she declared the land for taxation purposes and had paid its realty taxes. She denied the claims of respondents as plaintiffs below. Co-petitioner Candelario likewise denied the allegations in respondents’ complaint. She stressed that she had assigned her rights over the land to Magdaluyo.

In a reply dated July 19, 1993, respondents stated that the land in question is an accretion to Lot 173 covered by Transfer Certificate of Title No. T-2443-34 in their names. They admitted that co-petitioner Candelario’s house stood on the land in question.

At the pre-trial, the parties agreed to the appointment of a court commissioner to delimit the land in relation to cadastral Lot 173. Among others, the parties admitted that petitioner Magdaluyo had an existing tax declaration on the land, effective 1990, and that respondents’ predecessor-in-interest, Francisco Mijares, also had Tax Declaration No. 1845, effective 1948, covering the accretion of which respondents are claiming ownership, and that co-petitioner Candelario had resided on a portion of the land for some time.

Pertinent portions of the Amended Commissioner’s Report submitted on May 31, 1994 by court-appointed commissioner Nelson R. Dela Cruz, Sheriff IV, and approved by the trial court, are as follows:

That the Lot in Question is being claimed by the plaintiffs, but also claimed and actually possessed by the defendant Grace T. Magdaluyo.

That the improvements inside the Lot in Question are the houses of Grace T. Magdaluyo and Rizaldo Flores.

That the above-described Lot in Question is part or within the metes and bounds of the land in question in Civil Case No. 2132 entitled: “Rosario Adante versus Roberto Mijares, et al.”

That the total area of accretion claimed by the plaintiffs is 4,248 square meters including the Lot in Question in this case, that is from line 2 to 3 of Lot 173 up to the boundary line of Lot 1777 of Rosario Adante near the Aklan River.

That the Lot in Question is 12.80 meters away from the titled property of the plaintiffs which is Lot 173, covered by TCT No. T-2443-34. This Lot 173 is reflected in the 2nd Amended Sketch.6

After trial on the merits, the lower court rendered a decision in favor of the respondents, as follows:

WHEREFORE, in view of the foregoing, judgment is hereby rendered declaring the plaintiffs the lawful owners and possessors of the land in question as described in Exhibit “A”; declaring Exhibit “18” as null and void and ordering defendant Grace T. Magdaluyo to vacate the same and restore plaintiffs to its possession. Defendants are also ordered, jointly and severally, to pay plaintiffs the sum of P3,000.00 as litigation expenses as well as costs.

SO ORDERED.7

Petitioners appealed before the Court of Appeals, and on January 27, 1999, the appellate court affirmed in toto8 the decision of the trial court and denied petitioners’ motion for reconsideration. Hence, the instant petition with the following assigned errors:

I

THE RESPONDENT COURT OF APPEALS ERRED IN NOT FINDING FROM THE DOCUMENTARY EVIDENCE ON RECORD THAT THE DISPUTED LAND IS AN OLD DRIED RIVER BED OF THE SOOC RIVER WHICH IS OF PUBLIC DOMINION AND AS SUCH, ITS DISPOSITION IS WITHIN THE CONTROL AND AUTHORITY OF THE BUREAU OF LANDS.

II

THE RESPONDENT COURT OF APPEALS ERRED IN NOT ORDERING THE DISMISSAL OF THE COMPLAINT WITH THE TRIAL COURT ON GROUND OF NON-EXHAUSTION OF ADMINISTRATIVE REMEDIES AND NON INCLUSION OF THE BUREAU OF LANDS AS AN INDISPENSABLE PARTY.

III

THE RESPONDENT COURT OF APPEALS ERRED IN FAILING TO UPHOLD THE BUREAU OF LAND’S CERTIFICATION THAT THE DISPUTED LAND IS AGRICULTURAL DISPOSABLE LAND AND THEREFORE THE REAL ISSUE TO BE RESOLVED IS NOT ONE OF OWNERSHIP BUT ONLY THE FACT OF POSSESSION.

IV

THE RESPONDENT COURT OF APPEALS ERRED IN FAILING TO GIVE WEIGHT AND CONSIDERATION TO THE PHYSICAL CONTINUOUS POSSESSION OF PETITIONERS FOR MORE THAN THIRTY (30) YEARS IN ADDITION TO THE FACT THAT THE BUREAU OF LANDS HAS APPROVED THE MISCELLANEOUS SALES APPLICATION OF THE PETITIONERS.

Respondents in their comment before us contend that the present petition failed to raise any question of law in violation of Rule 45, Section 1 of the 1997 Rules of Civil Procedure. Respondents further point out that the land in dispute is part of a bigger parcel which had already been settled with finality by this Court in the case of Roberto Mijares, et al. vs. Court of Appeals, et al., G.R. No. 114395, July 20, 1994, in their favor.9

Considering the petition and the comment thereon, we now resolve to deny the petition for lack of merit.

As declared in the Amended Commissioner’s Report10 dated May 31, 1994:

. . . the above-described Lot in Question is part or within the metes and bounds of the land in question in Civil Case No. 2132, entitled: Rosario Adante versus Roberto Mijares, et al.

Civil Case No. 2132 involved Rosario Adante, et al. as plaintiffs and Roberto Mijares, et al. as defendants. On July 8, 1988, Judge Fructuoso C. Velicaria, Jr. of Kalibo, Aklan rendered judgment thus:

(1) Declaring the plaintiffs (Adantes) as owners of the remaining 1,778 accreted land, which is a portion of Lot B and the whole of Lot A of the commissioner’s sketch marked Exhibit “A” for the plaintiffs and Exhibit “1” for the defendants (Mijareses) and ordering defendants to immediately surrender the possession of the said 1,778 (sic) accreted land to the plaintiffs;

(2) Declaring defendants as owners of the 2,240 square meters of accreted land in Lot B of the commissioner’s sketch as Exhibit “A” for the plaintiffs and Exhibit “1” for the defendants;

(3) Ordering defendants to pay attorney’s fees of P2,500.00, litigation expenses of P1,000.00 to the plaintiffs; and

(4) Ordering the defendants to pay costs.11

This decision was affirmed in toto by the Court of Appeals in a decision promulgated on December 28, 1993, thus:

WHEREFORE, the decision dated July 8, 1988 rendered by the Regional Trial Court, Sixth Judicial Region, Branch 6 of Kalibo, Aklan, is AFFIRMED in toto.

SO ORDERED.12

On July 20, 1994, this Court issued a Resolution that:

. . . Considering the allegations, issues and arguments adduced in the petition for review on certiorari, as well as private respondent’s comment thereon, the Court Resolved to DENY the petition for failure of the petitioners to sufficiently show that the respondent court had committed any reversible error in rendering the questioned judgment.

The motion of private respondent to dismiss the petition, is further NOTED.13

A Motion for Reconsideration of the said resolution was also denied by this Court on September 21, 1994, thus:

Acting on the motion of petitioners for reconsideration of the resolution of July 20, 1994, which denied the petition for review on certiorari and considering that the basic issues have already been passed upon and there is no substantial argument to warrant a modification of this Court’s resolution, the Court Resolved to DENY reconsideration with FINALITY.

As correctly pointed out by respondents, the land subject of this petition is part of a bigger parcel that has already been awarded to them in a previous case decided with finality by this Court. Said decision now binds the whole world.

WHEREFORE, the instant petition is DENIED for lack of merit.

SO ORDERED.

Bellosillo (Chairman), Mendoza and De Leon, Jr., JJ., concur.

Petition denied.

HEIRS OF EMILIANO NAVARRO vs. INTERMEDIATE APPELLATE COURT & HEIRS OF SINFOROSO PASCUAL

Facts:

On October 3, 1946, Sinforoso Pascual filed an application for foreshore lease covering a tract of foreshore land in Sibocon, Balanga, Bataan, having an area of approximately seventeen (17) hectares. This application was denied on January 15, 1953. So was his motion for reconsideration. Subsequently, petitioners' predecessor-in-interest, also now deceased, Emiliano Navarro, filed a fishpond application with the Bureau of Fisheries covering twenty five (25) hectares of foreshore land also in Sibocon, Balanga, Bataan. Initially the application was denied, eventually however the grant was given. Pascual claimed that this land is an accretion to his property, The Talisay River as well as the Bulacan River flow downstream and meet at the Manila Bay thereby depositing sand and silt on Pascual's property resulting in an accretion thereon. Sinforoso Pascual claimed the accretion as the riparian owner. On March 25, 1960, the Director of Lands, represented by the Assistant Solicitor General, filed an opposition thereto stating that neither Pascual nor his predecessors-in-interest possessed sufficient title to the subject property, the same being a portion of the public domain and, therefore, it belongs to the Republic of the Philippines. On November 10, 1975, the courta quorendered judgment finding the subject property to be foreshore land and, being a part of the public domain, it cannot be the subject of land registration proceedings. On appeal, the respondent court reversed the findings of the courta quoand granted the petition for registration of the subject property but excluding certain areas. A motion for reconsideration was filed by in the CA but the same was denied. Anchoring their claim of ownership on Article 457 of the Civil Code, petitioners vigorously argue that the disputed 14-hectare land is an accretion caused by the joint action of the Talisay and Bulacan Rivers which run their course on the eastern and western boundaries, respectively, of petitioners' own tract of land.

Issue:

Whether or not the petitioners can rightfully claim the land under the principle of accretion

Held:

The petitioner’s claim is misplaced. The principle of accretion is only applicable to owners whose estates are adjacent to rivers as stated in Article 457 of the Civil Code. The disputed land is an accretion not on a river bank but on a sea bank, or on what used to be the foreshore of Manila Bay which adjoined petitioners' own tract of land on the northern side. As such, the applicable law is not Article 457 of to Civil Code but Article 4 of the Spanish Law of Waters of 1866. The disputed property is an accretion on a sea bank, Manila Bay being an inlet or an arm of the sea; as such, the disputed property is, under Article 4 of the Spanish Law of Waters of 1866, part of the public domain. As part of the public domain, the herein disputed land is intended for public uses, and "so long as the land in litigation belongs to the national domain and is reserved for public uses, it is not capable of being appropriated by any private person, except through express authorization granted in due form by a competent authority."Only the executive and possibly the legislative departments have the right and the power to make the declaration that the lands so gained by action of the sea is no longer necessary for purposes of public utility or for the cause of establishment of special industries or for coast guard services.Petitioners utterly fail to

show that either the executive or legislative department has already declared the disputed land as qualified, under Article 4 of the Spanish Law of Waters of 1866, to be the property of petitioners as owners of the estates adjacent thereto.

THIRD DIVISION

[G.R. No. 123509. March 14, 2000]

LUCIO ROBLES, EMETERIA ROBLES, ALUDIA ROBLES and EMILIO ROBLES, petitioners, vs. COURT OF APPEALS, Spouses VIRGILIO SANTOS and BABY RUTH CRUZ, RURAL BANK OF CARDONA, Inc., HILARIO ROBLES, ALBERTO PALAD JR. in his capacity as Director of Lands, and JOSE MAULEON in his capacity as District Land Officer of the Bureau Of Lands, respondents.

D E C I S I O N

PANGANIBAN, J.:

To be entitled to the remedy of quieting of title, petitioners must show that they have title to the real property at issue, and that some deed or proceeding beclouds its validity or efficacy. Buyers of unregistered real property, especially banks, must exert due diligence in ascertaining the titles of mortgagors and sellers, lest some innocent parties be prejudiced. Failure to observe such diligence may amount to bad faith and may result in the nullity of the mortgage, as well as of the subsequent foreclosure and/or auction sale. Unless the co-ownership is clearly repudiated, a co-owner cannot, by prescription, acquire title to the shares of the other co-owners. Mesm

The Case

Before us is a Petition for Review under Rule 45, assailing the June 15, 1995 Decision and the January 15, 1996 Resolution of the Court of Appeals[1] (CA) in CA-GR CV No. 34213.[2] In its Decision, the CA ruled:[3]

"WHEREFORE, the trial court’s June 17, 1991 decision is REVERSED and SET ASIDE, and in lieu thereof a new one is hereby entered ordering the dismissal of the plaintiffs-appellees['] second amended complaint."

Earlier, the trial court had disposed as follows: Sppedä jo

"WHEREFORE, premises considered, judgment is hereby rendered as follows:

1. Declaring free patent Title No. IV-1-010021 issued by the Bureau of Lands as null and void;

2. Ordering the defendant spouses Vergel Santos and Ruth Santos to deliver the property subject of this case to the plaintiff; and

3. Declaring the heirs of Silvino Robles as the absolute owner of the land in controversy."

The January 15, 1996 CA Resolution denied petitioners' Motion for Reconsideration.

The Facts

The present Petition is rooted in a case for quieting of title before the Regional Trial Court of Morong, Rizal, filed on March 14, 1988,[4] by Petitioners Lucio Robles, Emeteria Robles, Aludia Robles and Emilio Robles. The facts were narrated by the trial court in this wise:

"There seems to be no dispute that Leon Robles primitively owned the land situated in Kay Taga, Lagundi, Morong, Rizal with an area of 9,985 square meters. He occupied the same openly and adversely. He also declared the same in his name for taxation purposes as early as 1916 covered by Tax Declaration No. 17865 (Exh. "I") and paid the corresponding taxes thereon (Exh. "B"). When Leon Robles died, his son Silvino Robles inherited the land, who took possession of the land, declared it in his name for taxation purposes and paid the taxes thereon. Rtc-spped

"Upon the death of Silvino Robles in 1942, his widow Maria de la Cruz and his children inherited the property. They took adverse possession of said property and paid taxes thereon. The task of cultivat[ing] the land was assigned to plaintiff Lucio Robles who planted trees and other crops. He also built a nipa hut on the land. The plaintiffs entrusted the payment of the land taxes to their co-heir and half-brother, Hilario Robles.

"In 1962, for unknown reasons, the tax declaration of the parcel of land in the name of Silvino Robles was canceled and transferred to one Exequiel Ballena (Exh. "19"), father of Andrea Robles who is the wife of defendant Hilario Robles. Thereafter, Exequiel Ballena secured a loan from the Antipolo Rural Bank, using the tax declaration as security. Somehow, the tax declaration was transferred [to] the name of Antipolo Rural Bank (Exh. "17") and later on, was transferred [to] the name of defendant Hilario Robles and his wife (Exh. "16"). Calrky

"In 1996, Andrea Robles secured a loan from the Cardona Rural Bank, Inc., using the tax declaration as security. Andrea Robles testified without contradiction that somebody else, not her husband Hilario Robles, signed the loan papers because Hilario Robles was working in Marinduque at that time as a carpenter.

"For failure to pay the mortgage debt, foreclosure proceedings were had and defendant Rural Bank emerged as the highest bidder during the auction sale in October 1968.

"The spouses Hilario Robles failed to redeem the property and so the tax declaration was transferred in the name of defendant Rural Bank. On September 25, 1987, defendant Rural Bank sold the same to the Spouses Vergel Santos and Ruth Santos. Joä spped

"In September 1987, plaintiff discovered the mortgage and attempted to redeem the property, but was unsuccessful. On May 10,1988, defendant spouses Santos took possession of the property in question and was able to secure Free Patent No. IV-1-010021 in their names."[5]

On the other hand, the Court of Appeals summarized the facts of the case as follows:

"The instant action for quieting of title concerns the parcel of land bounded and more particularly described as follows: Sd-aad-sc

"A parcel of land located at Kay Taga, Lagundi, Morong, Rizal. Bounded [i]n the north by the property of Venancio Ablay y Simeon Ablay; [i]n the east by the property of Veronica Tulak y Dionisio Ablay; [i]n the south by the property of Simeon Ablay y Dionisio Ablay; and [i]n the west

by the property of Dionisio Ablay y Simeon Ablay, with an area of 9,985 square meters, more or less, assessed in the year 1935 at P60.00 under Tax Declaration No. 23219.

"As the heirs of Silvino Robles who, likewise inherited the above-described parcel from Leon Robles, the siblings Lucio, Emeteria, Aludia and Emilio, all surnamed Robles, commenced the instant suit with the filing of their March 14, 1988 complaint against Spouses Virgilio and Ruth Santos, as well as the Rural Bank of Cardona, Inc. Contending that they had been in possession of the land since 1942, the plaintiff alleged, among other matters, that it was only in September of 1987 that they came to know of the foreclosure of the real estate mortgage constituted thereon by the half-brother, Hilario Robles, in favor of defendant Rural Bank; and that they likewise learned upon further inquiry, that the latter had already sold the self-same parcel in favor of the Santos spouses (pp. 1-3, orig. rec.). Twice amended to implead Hilario Robles (pp. 76-80, orig. rec) and, upon subsequent discovery of the issuance of Free Patent No. IV-I-010021 in favor of the defendant spouses, the Director of Lands and the District Land Officer of the Bureau of Lands as parties-defendants (pp. 117-121, orig. rec). The plaintiffs’ complaint sought the following reliefs on the theory that the encumbrance of their half-brother, constituted on the land, as well as all proceedings taken subsequent thereto, were null and void, to wit:

"Wherefore, it is respectfully prayed that (a) a preliminary mandatory injunction be issued forthwith restoring plaintiffs to their possession of said parcel of land; (b) an order be issued annulling said Free Patent No. IV-I-010021 in the name of defendants spouses Vergel Santos and Ruth C. Santos, the deed of sale aforementioned and any tax declaration which have been issued in the name of defendants; and (c) ordering defendants jointly and severally, to pay plaintiffs the sum of P10,000.00 as attorney’s fees.

"Plaintiffs pray for other relief as [may be] just and equitable under the premises." (pp. 120-121, orig. rec.)

x x x x x x x x x

"With the termination of the pre-trial stage upon the parties-litigants’ agreement (p. 203, orig. rec.) the trial court proceeded to try the case on the merits. It thereafter rendered the challenged June 17, 1991 decision upon the following findings and conclusions:

"The real estate mortgage allegedly executed by Hilario Robles is not valid because his signature in the mortgage deed was forged. This fact, which remains unrebutted, was admitted by Andrea Robles.

"Inasmuch as the real estate mortgage executed allegedly by Hilario Robles in favor of the defendant Cardona Rural Bank, Inc. was not valid, it stands to reason that the foreclosure proceedings therein were likewise not valid. Therefore, the defendant bank did not acquire any right arising out of the foreclosure proceedings. Consequently, defendant bank could not have transferred any right to the spouses Santos.

"The fact that the land was covered by a free patent will not help the defendant Santos any.

"There can be no question that the subject [property was held] in the concept of owner by Leon Robles since 1916. Likewise, his successor-in-interest, Silvino Robles, his wife Maria de la Cruz and the plaintiffs occupied the property openly, continuously and exclusively until they were ousted from their possession in 1988 by the spouses Vergel and Ruth Santos.

"Under the circumstances, therefore, and considering that "open, exclusive and undisputed possession of alienable public lands for the period prescribed by law (30 years), creates the legal fiction whereby the land, upon completion of the requisite period, ipso jure and without the need of judicial or other action, ceases to be public land and becomes private property. Possession of public land x x x which is [of] the character and duration prescribed by the statute is the equivalent of an express grant from the State, considering the dictum of the statute itself[:]; "The possessor x x x shall be conclusively presumed to have

performed all the conditions essential to a government grant and shall be entitled to a certificate of title x x x." No proof is admissible to overcome a conclusive presumption[,] and confirmation proceedings would be a little more than a formality, at the most limited to ascertaining whether the possession claimed is of the required character and length of time. Registration thereunder would not confer title, but simply recognize a title already vested. (Cruz v. IAC, G.R. No. 75042, November 29, 1988) The land in question has become private land.

"Consequently, the issuance of [a] free patent title to the Spouses Vergel Santos and Ruth C. Santos is not valid because at the time the property subject of this case was already private land, the Bureau of Lands having no jurisdiction to dispose of the same." (pp. 257-259, orig. rec.)"

"Dissatisfied with the foregoing decision, the Santos spouses and the defendant Rural Bank jointly filed their July 6, 1991 Notice of Appeal (p.260, orig. rec.) x x x."[6]

Ruling of the Court of Appeals

In reversing the trial court, the Court of Appeals held that petitioners no longer had any title to the subject property at the time they instituted the Complaint for quieting of title. The CA ratiocinated as follows: MisÓ spped

"As correctly urged by the appellants, the plaintiff-appellees no longer had any title to the property at the time of the institution of the instant complaint. (pp. 25-27, rec.) The latter’s claim of continuous possession notwithstanding (pp. 3-5, TSN, July 5, 1990; p. 12, TSN, July 12, 1990), the aforesaid loss of title is amply evidenced by the subsequent declaration of the subject realty for taxation purposes not only in the name of Exequiel Ballena (Exhibits "1" and "2", pp. 23-24, orig. rec.) but also in the name of the Rural Bank of Antipolo (Exhibit 17, vol. II, orig. rec.). On the theory that tax declarations can be evincive of the transfer of a parcel of land or a portion thereof (Gacos v. Court of Appeals, 212 SCRA 214), the court a quo clearly erred in simply brushing aside the apparent transfers [which] the land in litigation had undergone. Whether legal or equitable, it cannot, under the

circumstances, be gainsaid that the plaintiff-appellees no longer had any title to speak of when Exequiel Ballena executed the November 7, 1966 Deed of Absolute Sale transferring the land in favor of the spouses Hilario and Andrea Robles (Exhibit "3", p. 25, orig. rec.)

"Even on the theory that the plaintiffs-appellees and their half-brother, Hilario Robles, are co-owners of the land left behind by their common father, Silvino Robles, such title would still be effectively discounted by what could well serve as the latter’s acts of repudiation of the co-ownership, i.e., his possession (p. 22, TSN, November 15, 1990) and declaration thereof for taxation purposes in his own name (Exhibit "4", p. 26, orig. rec.). In view of the plaintiffs-appellees’ inaction for more than twenty (20) years from the time the subject realty was transferred in favor of Hilario Robles, the appellants correctly maintain that prescription had already set in. While it may be readily conceded that an action to quiet title to property in the possession of the plaintiff is imprescriptible (Almanza vs. Arguelles, 156 SCRA 718; Coronel vs. Intermediate Appellate Court, 155 SCRA 270; Caragay-Layno vs. Court of Appeals, 133 SCRA 718; Charon Enterprises vs. Court of Appeals, 124 SCRA 784; Faja vs. Court of Appeals, 75 SCRA 441; Burton vs. Gabar, 55 SCRA 4999), it equally bears emphasis that a co-owner or, for that matter, the said co-owner[']s successors-in-interest who occupy the community property other than as co-owner[s] can claim prescription as against the other co-owners (De Guzman vs. Austria, 148 SCRA 75; Ramos vs. Ramos, 45 Phil. 362; Africa vs. Africa, 42 Phil. 902; Bargayo vs. Camumot, 40 Phil. 857; De Castro vs. Echarri, 20 Phil. 23). If only in this latter sense, the appellants correctly argue that the plaintiffs-appellees have lost their cause of action by prescription.

"Over and above the foregoing considerations, the court a quo gravely erred in invalidating the real estate mortgage constituted on the land solely on the basis of Andrea Robles’ testimony that her husband’s signature thereon was forged (p. 257, orig. rec.),

xxx xxx xxx

"In according to the foregoing testimony x x x credibility which, while admittedly unrebutted, was altogether uncorroborated, the trial court lost sight of the fact that the assailed deed of real estate

mortgage (Exhibit "5", Vol. II, orig. rec.) is a public document, the acknowledgment of which is a prima facie evidence of its due execution (Chua vs. Court of Appeals, 206 SCRA 339). As such, it retains the presumption of validity in the absence of a full, clear and convincing evidence to overcome such presumption (Agdeppa vs. Ibe, 220 SCRA 584). Maniks

"The foregoing principles take even more greater [sic] when it is, moreover, borne in mind that Hilario Robles made the following admissions in his March 8, 1989 answer, viz:

"3. The complaint filed against herein answering defendant has no legal basis considering that as the lawful owner of the subject real property, defendant Hilario Robles has the right to mortgage the said real property and could dispose the same in whatever manner he wishe[s] to do." (p. 96, orig. rec.)

"Appropriately underscored by the appellants, the foregoing admission is binding against Hilario [Robles]. Judicial admissions, verbal or written, made by the parties in the pleadings or in the course of the trial or other proceedings in the same case are conclusive, no evidence being required to prove the same. They cannot be contradicted unless shown to have been made through [a] palpable mistake or [unless] no such admission was actually made (Philippine American General Insurance, Inc. vs. Sweet Lines, Inc., 212 SCRA 194).

"It does not help the plaintiffs-appellees’ cause any that, aside from complying with the requirements for the foreclosure of the subject real estate mortgage (Exhibits "6", "7", "8" and "10", Volume II[)], the appellant Rural Bank had not only relented to the mortgagor’s request to postpone the (Exhibit "g", Vol. II, orig. rec.) but had likewise granted the latter’s request for an extension of the redemption period therefor (Exhibits "11" and "12", pp. 35-36, orig. rec.). Without going into minute detail in discussing the Santos spouses’ rights as purchasers for value and in good faith (Exhibit "21", Vol. II, orig. rec.), the mortgagor and the plaintiffs’-appellees cannot now be heard to challenge the validity of the sale of the land after admittedly failing to redeem the same within the extension the appellant Rural Bank granted (pp. 10-11, TSN, November 15, 1990).

"Being dependent on the supposed invalidity of the constitution and foreclosure of the subject real estate mortgage, the plaintiffs-appellees’ attack upon x x x Free Patent No. IV-I must necessarily fail. The trial court, therefore, misread, and ignored the evidence o[n] record, to come up with erroneous conclusion." Manikx

Contending that such ruling was contrary to law and jurisprudence, Petitioners Lucio, Emeteria, Aludia and Emilio -- all surnamed Robles -- filed this Petition for Review.[7]

The Assigned Error

Petitioners ascribe the following error to the respondent court:

"Respondent Court of Appeals grievously erred in ruling that with the transfers of the tax declaration over the parcel of land in question from Silvino Robles to Exequiel Ballena, then to the Rural Bank of Antipolo, then to Respondent Hilario Robles, then to Respondent Rural Bank of Cardona Inc., and then finally to Respondent Spouses Santos, petitioners, who by themselves and their predecessors in interest have been in open, actual and adverse possession of said parcel of land since 1916 up to their forced removal therefrom in 1988, have lost their title to said property by prescription to their half-brother, Respondent Hilario Robles, and then finally, to Respondent Spouses Santos."[8]

For a better understanding of the case, the above issue will be broken down into three points: first, the nature of the remedy of quieting of title; second, the validity of the real estate mortgage; and third, the efficacy of the free patent granted to the Santos spouses. Sppedâ

First Issue: Quieting of Title

Article 476 of the Civil Code provides:

"Whenever there is cloud on title to real property or any interest therein, by reason of any instrument, record, claim, encumbrance or proceeding which is apparently valid or effective but is in truth and in fact invalid, ineffective, voidable or unenforceable, and may be prejudicial to said title, an action may be brought to remove such cloud or to quiet title.

"An action may also be brought to prevent a cloud from being cast upon title to real property or any interest therein."

Based on the above definition, an action to quiet title is a common-law remedy for the removal of any cloud or doubt or uncertainty on the title to real property.[9] It is essential for the plaintiff or complainant to have a legal or an equitable title to or interest in the real property which is the subject matter of the action.[10] Also, the deed, claim, encumbrance or proceeding that is being alleged as a cloud on plaintiff’s title must be shown to be in fact invalid or inoperative despite its prima facie appearance of validity or legal efficacy.[11]

That there is an instrument or a document which, on its face, is valid and efficacious is clear in the present case. Petitioners allege that their title as owners and possessors of the disputed property is clouded by the tax declaration and, subsequently, the free patent thereto granted to Spouses Vergel and Ruth Santos. The more important question to be resolved, however, is whether the petitioners have the appropriate title that will entitle them to avail themselves of the remedy of quieting of title. Nexold

Petitioners anchor their claim to the disputed property on their continued and open occupation and possession as owners thereof. They allege that they inherited it from their father, Silvino, who in turn had inherited it from his father, Leon. They maintain that after their father’s death, they agreed among themselves that Petitioner Lucio Robles would be tending and cultivating it for everyone, and that their half-brother Hilario would be paying the land taxes.

Petitioners insist that they were not aware that from 1962 until 1987, the subject property had been declared in the names of Exequiel Ballena, the Rural Bank of Antipolo, Hilario Robles, the Rural Bank of Cardona, Inc., and finally, Spouses Vergel and Ruth Santos. Maintaining that as co-owners of the subject property, they did not agree to the real estate mortgage constituted on it, petitioners insist that their shares therein should not have been prejudiced by Hilario’s actions. Miso

On the other hand, Private Respondents Vergel and Ruth Santos trace their claim to the subject property to Exequiel Ballena, who had purportedly sold it to Hilario and Andrea Robles. According to private respondents, the Robles spouses then mortgaged it to the Rural Bank of Cardona, Inc. -- not as co-owners but as absolute owners -- in order to secure an agricultural loan worth P2,000. Upon their failure to pay their indebtedness, the mortgage was foreclosed and the property sold to the bank as the highest bidder. Thereafter, private respondents purchased the property from the bank. Sppedjo

Undisputed is the fact that the land had previously been occupied by Leon and later by Silvino Robles, petitioners’ predecessors-in-interest, as evidenced by the different tax declarations issued in their names. Also undisputed is the fact that the petitioners continued occupying and possessing the land from the death of Silvino in 1942 until they were allegedly ousted therefrom in 1988. In 1962, the subject property was declared in the name of Exequiel for taxation purposes. On September 30, 1965, it was again declared in the same name; on October 28, 1965, in the name of the Rural Bank of Antipolo; on November 7, 1966, in the name of Hilario and Andrea; and thereafter, in the name of the Rural Bank of Cardona and, finally, in the name of the Santos spouses.

Ostensibly, the Court of Appeals failed to consider irregularities in the transactions involving the disputed property. First, while it was declared in the name of Exequiel in 1962, there was no instrument or deed of conveyance evidencing its transfer from the heirs of Silvino to him. This fact is important, considering that the petitioners are alleging continued possession of the property. Second, Exequiel was the father-in-law of Hilario, to whom petitioners had entrusted the payment of the land taxes. Third, considering that the subject property had been mortgaged by Exequiel to the Rural Bank of Antipolo, and that it was foreclosed and in fact declared in the bank’s name in 1965, why was he able to sell it to Spouses Hilario and Andrea in 1966? Lastly, inasmuch as it was an unregistered parcel of land, the Rural Bank of Cardona, Inc., did not observe due diligence in determining Hilario’s title thereto. Jospped

The failure to show the indubitable title of Exequiel to the property in question is vital to the resolution of the present Petition. It was from him that Hilario had allegedly derived his title thereto as owner, an allegation which thereby enabled him to mortgage it to the Rural Bank of Cardona. The occupation and the possession thereof by the petitioners and their predecessors-in-interest until 1962 was not disputed, and Exequiel’s acquisition of the said property by prescription was not alleged. Thus, the deed of conveyance purportedly evidencing the transfer of ownership and possession from the heirs of Silvino to Exequiel should have been presented as the best proof of that transfer. No such document was presented, however. Scmis

Therefore, there is merit to the contention of the petitioners that Hilario mortgaged the disputed property to the Rural Bank of Cardona in his capacity as a mere co-owner thereof. Clearly, the said transaction did not divest them

of title to the property at the time of the institution of the Complaint for quieting of title.

Contrary to the disquisition of the Court of Appeals, Hilario effected no clear and evident repudiation of the co-ownership. It is a fundamental principle that a co-owner cannot acquire by prescription the share of the other co-owners, absent any clear repudiation of the co-ownership. In order that the title may prescribe in favor of a co-owner, the following requisites must concur: (1) the co-owner has performed unequivocal acts of repudiation amounting to an ouster of the other co-owners; (2) such positive acts of repudiation have been made known to the other co-owners; and (3) the evidence thereof is clear and convincing.[12]

In the present case, Hilario did not have possession of the subject property; neither did he exclude the petitioners from the use and the enjoyment thereof, as they had indisputably shared in its fruits.[13] Likewise, his act of entering into a mortgage contract with the bank cannot be construed to be a repudiation of the co-ownership. As absolute owner of his undivided interest in the land, he had the right to alienate his share, as he in fact did.[14] Neither should his payment of land taxes in his name, as agreed upon by the co-owners, be construed as a repudiation of the co-ownership. The assertion that the declaration of ownership was tantamount to repudiation was belied by the continued occupation and possession of the disputed property by the petitioners as owners. MisÓ sc

Second Issue: Validity of the Real Estate Mortgage

In a real estate mortgage contract, it is essential that the mortgagor be the absolute owner of the property to be mortgaged; otherwise, the mortgage is void.[15] In the present case, it is apparent that Hilario Robles was not the absolute owner of the entire subject property; and that the Rural Bank of Cardona, Inc., in not fully ascertaining his title thereto, failed to observe due diligence and, as such, was a mortgagee in bad faith.

First, the bank was utterly remiss in its duty to establish who the true owners and possessors of the subject property were. It acted with precipitate haste in approving the Robles spouses’ loan application, as well as the real estate mortgage covering the disputed parcel of land.[16] Had it been more circumspect and assiduous, it would have discovered that the said property was in fact being occupied by the petitioners, who were tending and cultivating it.

Second, the bank should not have relied solely on the Deed of Sale purportedly showing that the ownership of the disputed property had been transferred from Exequiel Ballena to the Robles spouses, or that it had subsequently been declared in the name of Hilario. Because it was dealing with unregistered land, and the circumstances surrounding the transaction between Hilario and his father-in-law Exequiel were suspicious, the bank should have exerted more effort to fully determine the title of the Robleses. Rural Bank of Compostela v. Court of Appeals[17] invalidated a real estate mortgage after a finding that the bank had not been in good faith. The Court explained: "The rule that persons dealing with registered lands can rely solely on the certificate of title does not apply to banks." In Tomas v. Tomas, the Court held: Sc-slx

"x x x. Banks, indeed, should exercise more care and prudence in dealing even with registered lands, than private individuals, for their business is one affected with public interest, keeping in trust money belonging to their depositors, which they should guard against loss by not committing any act of negligence which amounts to lack of good faith by which they would be denied the protective mantle of land registration statute, Act 496, extended only to purchasers for value and in good faith, as well as to mortgagees of the same character and description. x x x."[18]

Lastly, the Court likewise finds it unusual that, notwithstanding the bank’s insistence that it had become the owner of the subject property and had paid the land taxes thereon, the petitioners continued occupying it and harvesting the fruits therefrom.[19]

Considering that Hilario can be deemed to have mortgaged the disputed property not as absolute owner but only as a co-owner, he can be adjudged to have disposed to the Rural Bank of Cardona, Inc., only his undivided share therein. The said bank, being the immediate predecessor of the Santos spouses, was a mortgagee in bad faith. Thus, justice and equity mandate the entitlement of the Santos spouses, who merely stepped into the shoes of the bank, only to what legally pertains to the latter -- Hilario’s share in the disputed property. Missc

Third Issue: Efficacy of Free Patent Grant

Petitioners repeatedly insist that the disputed property belongs to them by private ownership and, as such, it could not have been awarded to the Santos spouses by free patent. They allege that they possessed it in the

concept of owners -- openly, peacefully, publicly and continuously as early as 1916 until they were forcibly ousted therefrom in 1988. They likewise contend that they cultivated it and harvested its fruits. Lucio Robles testified:

"xxx xxx xxx

Q By the way, why do you know this parcel of land?

A Because before my father died, he showed me all the documents.

Q Before the death of your father, who was the owner of this parcel of land?

A My father, sir. Spped

Q How did your father acquire this parcel of land?

A My father knew that it [was] by inheritance, sir.

Q From whom?

A From his father, Leon Robles, sir.

Q And do you know also [from] whom Leon Robles acquired this land?

A It was inherited from his father, sir.

Q What is the nature of this parcel of land?

A It’s an agricultural land, sir,

Q Now, at the time of the death of your father, this land was planted with what crops?

A Mango trees, santol trees, and I was the one who planted those trees, sir.

Q When did you plant those trees?

A Before the death of my father, sir. M-issdaa

Q Now, after the death of your father, who cultivated this parcel of land?

A I took charge of the land after the death of my father, sir.

Q Up to when?

A Up to the present, sir, after this case was already filed."[20]

The preceding claim is an assertion that the subject property is private land. The petitioners do not concede, and the records do not show, that it was ever an alienable land of the public domain. They allege private ownership thereof, as evidenced by their testimonies and the tax declarations issued in the names of their predecessors-in-interest. It must be noted that while their claim was not corroborated by other witnesses, it was not controverted by the other parties, either. Kycalr

Carlos Dolores insisted that the Rural Bank of Cardona, Inc., of which he was the manager, had acquired and possessed the subject property. He did not, however, give any reason why the petitioners had continued occupying it, even as he admitted on the stand that he had visited it twice.[21]

In the light of their open, continuous, exclusive and notorious possession and occupation of the land, petitioners are "deemed to have acquired, by operation of law, a right to a grant, a government grant, without the necessity of a certificate of title being issued."[22] The land was "segregated from the public domain." Accordingly, the director of lands had no authority to issue a free patent thereto in favor of another person. Verily, jurisprudence holds that a free patent covering private land is null and void.[23]

Worth quoting is the disquisition of the Court in Agne v. Director of Lands,[24] in which it held that a riparian owner presently in possession had a better right over an abandoned river bed than had a registered owner by virtue of a free patent.

"Under the provisions of Act 2874 pursuant to which the title of private respondents’ predecessor-in-interest was issued, the President of the Philippines, or his alter ego, the Director of Lands, has no authority to grant a free patent for land that has ceased to be a public land and has passed to private ownership and a title so issued is null and void. The nullity arises, not from fraud or deceit, but from the fact that the land is not under the

jurisdiction of the Bureau of Lands. The jurisdiction of the Director of Lands is limited only to public lands and does not cover lands publicly owned. The purpose of the Legislature in adopting the former Public Land Act, Act No. 2874, was and is to limit its application to lands of the public domain, and lands held in private ownership are not included therein and are not affected in any manner whatsoever thereby. Land held in freehold or fee title, or of private ownership, constitutes no part of the public domain, and cannot possibly come within the purview of said act 2874, inasmuch as the ‘subject’ of such freehold or private land is not embraced in any manner in the title of the Act and the same is excluded from the provisions of the text thereof. Kyle

"We reiterate that private ownership of land is not affected by the issuance of the free patent over the same land because the Public Land Act applies only to lands of the public domain. Only public land may be disposed of by the Director of Lands. Since as early as 1920, the land in dispute was already under the private ownership of herein petitioners and no longer a part of the lands of the public domain, the same could not have been the subject matter of a free patent. The patentee and his successors-in-interest acquired no right or title to said land. Necessarily, Free Patent No. 23263 issued to Herminigildo Agpoon is null and void and the subsequent titles issued pursuant thereto cannot become final and indefeasible. Hence we ruled in Director of Lands v. Sicsican, et al. that if at the time the free patents were issued in 1953 the land covered therein were already private property of another and, therefore, not part of the disposable land of the public domain, then applicants patentees acquired no right or title to the land.

"Now, a certificate of title fraudulently secured is null and void ab initio if the fraud consisted in misrepresenting that the land is part of the public domain, although it is not. As earlier stated, the nullity arises, not from the fraud or deceit, but from the fact that the land is not under the jurisdiction of the Bureau of Lands. Being null and void, the free patent granted and the subsequent titles produce no legal effect whatsoever. Quod nullum est, nullum producit effectum.

"A free patent which purports to convey land to which the government did not have any title at the time of its issuance does not vest any title in the patentee as against the true owner. The Court has previously held that the Land Registration Act and the Cadastral Act do not give anybody who resorts to the provisions thereof a better title than what he really and lawfully has. Exsm

xxx xxx xxx

"We have, therefore, to arrive at the unavoidable conclusion that the title of herein petitioners over the land in dispute is superior to the title of the registered owner which is a total nullity. The long and continued possession of petitioners under a valid claim of title cannot be defeated by the claim of a registered owner whose title is defective from the beginning."

The Santos spouses argue that petitioners do not have the requisite personality to question the free patent granted them, inasmuch as "it is a well-settled rule that actions to nullify free patents should be filed by the Office of the Solicitor General at the behest of the Director of Lands."[25]

Private respondents’ reliance on this doctrine is misplaced. Indeed, the Court held in Peltan Development, Inc. v. Court of Appeals[26] that only the solicitor general could file an action for the cancellation of a free patent. Ruling that the private respondents, who were applicants for a free patent, were not the proper parties in an action to cancel the transfer certificates covering the parcel of land that was the subject of their application, the Court ratiocinated thus: Sl-xm-is

"The Court also holds that private respondents are not the proper parties to initiate the present suit. The complaint, praying as it did for the cancellation of the transfer certificates of title of petitioners on the ground that they were derived from a "spurious" OCT No. 4216, assailed in effect the validity of said title. While private respondents did not pray for the reversion of the land to the government, we agree with the petitioners that the prayer in the complaint will have the same result of reverting the land to the government under the Regalian Doctrine. Gabila v. Barinaga[27] ruled that only the government is entitled to this relief. x x x."

Because the cancellation of the free patent as prayed for by the private respondents in Peltan would revert the property in question to the public domain, the ultimate beneficiary would be the government, which can be represented by the solicitor general only. Therefore, the real party-in-interest is the government, not the private respondents.

This ruling does not, however, apply to the present case. While the private respondents in Peltan recognized that the disputed property was part of the public domain when they applied for free patent,[28] herein petitioners asserted and proved private ownership over the disputed parcel of land by virtue of their open, continued and exclusive possession thereof since 1916. Msesm

Neither does the present case call for the reversion of the disputed property to the State. By asking for the nullification of the free patent granted to the Santos spouses, the petitioners are claiming the property which, they contend, rightfully belongs to them.

Indeed, the same issue was resolved by this Court in Heirs of Marciano Nagano v. Court of Appeals.[29] In that case, the trial court dismissed a Complaint seeking the declaration of nullity of an Original Certificate of Title issued pursuant to a free patent, reasoning that the action should have been instituted by the solicitor general. In reversing the trial court, the Supreme Court held: Sl-xsc

"It is settled that a Free Patent issued over private land is null and void, and produces no legal effect whatsoever. Quod nullum est, nullum producit effectum. Moreover, private respondents’ claim of open, peaceful, continuous and adverse possession of the 2,250 square meter portion since 1920, and its illegal inclusion in the Free Patent of petitioners and in their original certificate of title, gave private respondents a cause of action for quieting of title which is imprescriptible." ScmisÓ

In any event, the Office of the Solicitor General was afforded an opportunity to express its position in these proceedings. But it manifested that it would not file a memorandum, because "this case involves purely private interests."[30]

The foregoing considered, we sustain the contention of petitioners that the free patent granted to the Santos spouses is void. It is apparent that they are claiming ownership of the disputed property on the basis of their possession thereof in the concept of owners -- openly, peacefully, publicly, continuously and adversely since 1916. Because they and their predecessors-in-interest

have occupied, possessed and cultivated it as owners for more than thirty years,[31] only one conclusion can be drawn -- it has become private land and is therefore beyond the authority of the director of lands. Misspped

Epilogue

We recognize that both the petitioners and the Santos spouses fell victim to the dubious transaction between Spouses Hilario and Andrea Robles and the Rural Bank of Cardona, Inc. However, justice and equity mandate that we declare Petitioners Lucio, Emerita, Aludia and Emilio Robles to have the requisite title essential to their suit for quieting of title. Considering the circumstances peculiar to this complicated problem, the Court finds this conclusion the logical and just solution. Scä

The claim that petitioners were guilty of laches in not asserting their rights as owners of the property should be viewed in the light of the fact that they thought their brother was paying the requisite taxes for them, and more important, the fact that they continued cultivating it and harvesting and gaining from its fruits.

From another viewpoint, it can even be said that it was the Rural Bank of Cardona, Inc., which was guilty of laches because, granting that it had acquired the subject property legally, it failed to enforce its rights as owner. It was oblivious to the petitioners’ continued occupation, cultivation and possession thereof. Considering that they had possessed the property ingood faith for more than ten years, it can even be argued that they thus regained it by acquisitive prescription. In any case, laches is a remedy in equity, and considering the circumstances in this case, the petitioners cannot be held guilty of it. Jurismis

In sum, the real estate mortgage contract covering the disputed property – a contract executed between Spouses Hilario and Andrea on the one hand and the Rural Bank of Cardona, Inc., on the other -- is hereby declared null and void insofar as it prejudiced the shares of Petitioners Lucio, Emerita, Aludia and Emilio Robles; it is valid as to Hilario Robles’ share therein. Consequently, the sale of the subject property to the Santos spouses is valid insofar as it pertained to his share only. Likewise declared null and void is Free Patent No. IV-1-010021 issued by the Bureau of Lands covering the subject property. Jjjuris

WHEREFORE, the Petition is hereby GRANTED. The assailed Decision is REVERSED and SET ASIDE. Except as modified by the last paragraph of this Decision, the trial court’s Decision is REINSTATED. No costs.

SO ORDERED.