Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

 

G.R. No. L-28716 November 18, 1970

FELIX CAISIP, IGNACIO ROJALES and FEDERICO VILLADELREY, petitioners, vs.THE PEOPLE OF THE PHILIPPINES and THE COURT OF APPEALS, respondents.

Godofredo F. Trajano and Rafael A. Francisco for petitioners.

Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Antonio G. Ibarra and Solicitor Conrado T. Limcaoco for respondents.

 

CONCEPCION, C.J.:

This case is before Us upon petition of defendants Felix Caisip, Ignacio Rojales and Federico Villadelrey, for review on certiorari of a decision of the Court of Appeals which affirmed that of the Court of First Instance of Batangas, convicting them of the crime of Grave Coercion, with which they are charged, and sentencing each to four (4) months and one (1) day of arresto mayor and to pay a fine of P200.00, with subsidiary imprisonment in case of insolvency, not to exceed one-third of the principal penalty, as well as one-third of the costs.

As set forth in the trial court's decision, the background of the present case is this:

The complainant Gloria Cabalag is the wife of Marcelino Guevarra who cultivated a parcel of land known as Lot 105-A of Hacienda Palico situated in sitio Bote-bote, barrio Tampisao, Nasugbu, Batangas. The said parcel of land used to be tenanted by the deceased father of the complainant. Hacienda Palico is owned by Roxas y Cia. and administered by Antonio Chuidian. The overseer of the said hacienda is Felix Caisip, one of the accused herein. Even before the occurrence of the incident presently involved, there had been a series of misunderstandings and litigations involving the complainant and her husband, on one hand, and the men of Hacienda Palico on the other.

It appears that on December 23, 1957, Marcelino Guevarra filed an action with the Court of Agrarian Relations seeking recognition as a lawful tenant of Roxas y Cia. over lot No. 105-A of Hacienda Palico. In a decision dated February 22, 1958, the Court of Agrarian Relations declared it has no jurisdiction over the case, inasmuch as Guevarra is not a tenant on the said parcel of land. An appeal was taken by Guevarra to the Supreme Court, but the appeal was dismissed in a resolution dated April 10, 1958.

On May 17, 1958, Roxas y Cia. filed an action against Marcelino Guevarra in the justice of the peace court of Nasugbu, Batangas, for forcible entry, praying therein that Guevarra be ejected from the premises of Lot No. 105-A. After due hearing, the said Court in a decision dated May 2, 1959 ordered Guevarra to vacate the lot and to pay damages and accrued rentals. A writ of execution was issued by Justice of the Peace Rodolfo A. Castillo of Nasugbu, which was served on Guevarra on June 6, 1959, and the return of which was made by Deputy Sheriff Leonardo R. Aquino of this Court on June 23, 1959 (Exhibit "10"). The writ recites among other things that the possession of the land was delivered to the Roxas y Cia. thru Felix Caisip, the overseer, and Guevarra was given twenty days from June 6, 1959 within which to leave the premises.

The record before Us does not explain why said decision was executed. According to the complainant, her husband's counsel had appealed from said decision. The justice of the peace who rendered it, Hon. Rodolfo Castillo, said that there really had been an attempt to appeal, which was not given due course because the reglementary period therefor had expired; that a motion to reconsider his order to this effect was denied by him; and that a second motion for reconsideration was "still pending consideration," and it was October 19, 1959 when such testimony was given.

Continuing the narration of the antecedent facts, His Honor, the Trial Judge, added:

On June 15, 1959, some trouble occurred between the complainant and Caisip regarding the cutting of sugar cane on Lot 105-A. The following day June 16, 1959, the complainant allegedly again entered the premises of Lot 105-A and refused to be driven out by Felix Caisip. Due to the aforementioned incidents, Gloria Cabalag was charged in the justice of the peace court of Nasugbu, Batangas, with grave coercion for the incident of June 15, 1959, docketed in the said court as Criminal Case No. 968 (Exhibit "3"); and with the crime of unjust vexation for the incident of June 16, 1959, docketed in the said court as Criminal Case No. 970. Both cases, however, were filed only on June 25, 1959.

In other words, these criminal cases, Nos. 968 and 970, against Gloria Cabalag, were filed eight (8) days after the incident involved in the case at bar. It is, also, noteworthy that both cases were — on motion of the prosecution, filed after a reinvestigation thereof — provisionally dismissed, on November 8, 1960, by the Court of First Instance of Batangas, upon the ground "that the evidence of record ... are insufficient to prove the guilt of the accused beyond reasonable doubt." The decision of said court, in the case at bar, goes on to say:

It further appears that due to the tenacious attitude of Gloria Cabalag to remain in the premises, Caisip sought the help of the chief of police of Nasugbu who advised him to see Deputy Sheriff Aquino about the matter. The latter, however, informed Caisip that he could not act on the request to eject Gloria Cabalag and to stop her from what she was doing without a proper court order. Caisip then consulted Antonio Chuidian, the hacienda administrator, who, in turn, went to the chief of police and requested for the detail of policemen in sitio Bote-bote. The chief of police, acting on said request, assigned the accused Ignacio Rojales and Federico Villadelrey, police sergeant and police corporal, respectively, of the Nasugbu Police Force, to sitio Bote-bote. 1

On June 17, 1959, at about 5:00 p.m., Gloria Cabalag was seen weeding the portion of Lot 105-A which was a ricefield. Appellant Caisip approached her and bade her to leave, but she refused to do so, alleging that she and her husband had the right to stay there and that the crops thereon belong

to them. She having stuck to this attitude, even when he threatened to call the police, Caisip went to his co-defendants, Sgt. Rojales and Cpl. Villadelrey, both of the local police, who were some distance away, and brought them with him. Rojales told Gloria, who was then in a squatting position, to stop weeding. As Gloria insisted on her right to stay in said lot, Rojales grabbed her right hand and, twisting the same, wrested therefrom the trowel she was holding. Thereupon, Villadelrey held her left hand and, together with Rojales, forcibly dragged her northward — towards a forested area, where there was a banana plantation — as Caisip stood nearby, with a drawn gun.

Inasmuch as Gloria shouted "Ina ko po! Ina ko po!" 2her neighbors, Librada Dulutan, followed, soon later, by Francisca Andino, came and asked the policemen why they were dragging her. The policemen having answered that they would take Gloria to town which was on the west — Francisca Andino pleaded that Gloria be released, saying that, if their purpose was as stated by them, she (Gloria) would willingly go with them. By this time, Gloria had already been dragged about eight meters and her dress, as well as her blouse 3were torn. She then agreed to proceed westward to the municipal building, and asked to be allowed to pass by her house, within Lot 105-A, in order to breast-feed her nursing infant, but, the request was turned down. As they passed, soon later, near the house of Zoilo Rivera, head of the tenant organization to which she was affiliated, in the barrio of Camachilihan, Gloria called out for him, whereupon, he went down the house and accompanied them to the municipal building. Upon arrival thereat, Rojales and Villadelrey turned her over to the policeman on duty, and then departed. After being interrogated by the chief of police, Gloria was, upon representations made by Zoilo Rivera, released and allowed to go home.

The foregoing is the prosecution's version. That of the defense is to the effect that, upon being asked by the policemen to stop weeding and leave the premises, Gloria, not only refused to do so, but, also, insulted them, as well as Caisip. According to the defense, she was arrested because of the crime of slander then committed by her. Appellants Rojales and Villadelrey, moreover, testified that, as they were heading towards the barrio of Camachilihan, Gloria proceeded to tear her clothes.

His Honor, the Trial Judge, accepted, however, the version of the prosecution and found that of the defense unworthy of credence. The findings of fact of the Court of Appeals, which fully concurred in this view, are "final," and our authority to review on certiorari its appealed decision is limited to questions purely of law. 4Appellants maintain that the Court of Appeals has erred: (1) in not finding their acts "justified under Article 429 of the New Civil Code"; (2) in holding that the 20-day period of grace given to Marcelino Guevarra and his wife, Gloria Cabalag, by the sheriff, to vacate Lot 105-A, was valid and lawful; (3) in finding that the elements of the crime of grave coercion are present in the case at bar; and (4) in finding appellants guilty as charged. This pretense is clearly untenable.

Art. 429 of our Civil Code, reading:

The owner or lawful possessor of a thing has the right to exclude any person from the enjoyment and disposal thereof. For this purpose, he may use such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his property.

upon which appellants rely is obviously inapplicable to the case at bar, for, having been given 20 days from June 6, 1959, within which to vacate Lot 105-A, complainant did not, on June 17, 1959 — or within said period — invade or usurp said lot. She had merely remained in possession thereof, even though the hacienda owner may have become its co-possessor. Appellants did not "repel orprevent in actual or threatened ... physical invasion or usurpation." They expelled Gloria from a property of which she and her husband were in possession even before the action for forcible entry was filed against them on May 17, 1958, despite the fact that the Sheriff had explicitly authorized them to stay in said property up to June 26, 1959,

and had expressed the view that he could not oust them therefrom on June 17, 1959, without a judicial order therefor.

It is urged, that, by weeding and refusing to leave Lot 105-A, Gloria had committed a crime in the presence of the policemen, despite the aforementioned 20-day period, which, appellants claim, the sheriff had no authority to grant. This contention is manifestly untenable, because: (1) said period was granted in the presence of the hacienda owner's representative, appellant Caisip, who, by not objecting thereto, had impliedly consented to or ratified the act performed by the sheriff; (2) Gloria and her husband were thereby allowed to remain, and had, in fact, remained, in possession of the premises, perhaps together with the owner of the hacienda or his representative, Caisip; (3) the act of removing weeds from the ricefield was beneficial to its owner and to whomsoever the crops belonged, and, even if they had not authorized it, does not constitute a criminal offense; and (4) although Gloria and her husband had been sentenced to vacate the land, the judgment against them did not necessarily imply that they, as the parties who had tilled it and planted thereon, had no rights, of any kind whatsoever, in or to the standing crops, inasmuch as "necessary expenses shall be refunded to every possessor,"5 and the cost of cultivation, production and upkeep has been held to partake of the nature of necessary expenses. 6

It is, accordingly, clear that appellants herein had, by means of violence, and without legal authority therefor, prevented the complainant from "doing something not prohibited by law," (weeding and being in Lot 105-A), and compelled her "to do something against" her will (stopping the weeding and leaving said lot), "whether it be right or wrong," thereby taking the law into their hands, in violation of Art. 286 of the Revised Penal Code. 7

Appellant Caisip argues that, not having used violence against the complaining witness, he should be acquitted of the charge. In this connection, His Honor, the Trial Judge, correctly observed:

... While it is true that the accused Caisip did not lay hands on the complainant, unlike the accused Rojales and Villadelrey who were the ones who used force against Gloria, and while the Court is also inclined to discredit the claim of the complainant that Felix Caisip drew a gun during the incident, it sufficiently appears from the record that the motivation and inducement for the coercion perpetrated on the complainant came from the accused Caisip. It was his undisguised and particular purpose to prevent Gloria from entering the land and working on the same. He was the one who first approached Gloria with this objective in mind, and tried to prevent her from weeding the land. He had tried to stop Gloria from doing the same act even the day previous to the present incident. It was Caisip who fetched the policemen in order to accomplish his purpose of preventing Gloria from weeding the land and making her leave the premises. The policemen obeyed his bidding, and even when the said policemen were already over-asserting their authority as peace officers, Caisip simply stood by without attempting to stop their abuses. He could be hardly said to have disapproved an act which he himself induced and initiated.  8

In other words, there was community of purpose between the policemen and Caisip, so that the latter is guilty of grave coercion, as a co-conspirator, apart from being a principal by induction.  9

In the commission of the offense, the aggravating circumstances of abuse of superior strength 10 and disregard of the respect due the offended party, by reason of her sex, 11 were present, insofar as the three appellants herein are concerned. As regards appellants Rojales and Villadelrey, there was the additional aggravating circumstance of having taken advantage of their positions as members of the local police force. Hence, the penalty of imprisonment meted out to appellants herein, which is the minimum of the maximum prescribed in said Art. 286, 12 and the fine imposed upon them, are in accordance with law.

WHEREFORE, the decision appealed from is hereby affirmed, with costs against the defendants-appellants. It is so ordered.

Reyes, J.B.L., Makalintal, Zaldivar, Castro, Fernando, Teehankee and Barredo, JJ., concur.

Dizon, J., is on leave.

Makasiar and Villamor, JJ., took no part.

CAISIP V. PEOPLE36 SCRA 17

 

FACTS:Cabalag  and  her  husband  cultivated  a  parcel  of  land  in  Hacienda  Palico, which was owned by Roxas y Cia.  Caisip is the overseer of the land.  The land  cultivated  was  previously  tenanted  by  the  father  of  Cabalag.    On  a relevant date, Guevarra sought recognition as a lawful tenant from the CAR but  such  was  dismissed  as  it  was  held  that  he  wasn’t  a  tenant  thereof.  Thereafter, Roxas filed a case for forcible entry against Guevarra, on which he  won  and  the  court  ordered  Guevarra  to  vacate  the  lot.    Meanwhile, there  was  an  altercation  between  Cabalag  and  Caisip  over  the  cutting  of sugar  cane.    She  was  being  asked  to  leave  by  Caisip  but  she  refused.  Thereafter,  she  was  charged  with  grave  coercion.    When  she  was  again seen in the Hacienda and weeding, she was forcibly dragged by policemen and Caisip.  This prompted for the filing a case for grave coercion.  

HELD:Article 429 is inapplicable to the case at bar.  The complainant didn’t usurp or invade said lot.  She had merely remained in possession thereof, even though the hacienda owner may have become its co-possessor.  Appellants didn’t repel or prevent an actual or threatened unlawful physical invasion or  usurpation  of  the  property.    They  expelled  the  complainant  from  a property on which she and her husband were in possession even before the action for forcible entry was filed against them.

Caisip vs. PeopleFelix Caisip vs. People of the Philippines G.R. No. L-28716, November 18, 1970Concepcion, C.J.Facts: The complainant Gloria Cabalag is the wife of Marcelino Guevarra who cultivated a parcel of land known as Lot 105-A of Hacienda Palico situated in sitio Bote-bote, barrio

Tampisao, Nasugbu, Batangas. The said parcel of land used to be tenanted by the deceased father of the complainant. Hacienda Palico is owned by Roxas y Cia. and administered by Antonio Chuidian. The overseer of the said hacienda is Felix Caisip, one of the accused herein.On May 17, 1958 Roxas y Cia filed a forcible entry case against Guevarra. The court decided in favour of Roxas y Cia and issued a writ of execution. The return of the writ showed that possession of Lot 105-A was turned over to the owner thru Caisip and that Guevarra and Cabalag were given 20 days from June 6, 1959 to vacate the premises. It also appears in the record that due to the tenacious attitude of Cabalag, Caisip sought the help of policemen Federico Villadelrey and Ignacio Rojales.

On June 17, 1959, Cabalag was seen weeding the portion of Lot 105-A which was a ricefield. Caisip approached her and bade her to leave but Cabalag refused to do so claiming that she and her husband has a right over the property. She having stuck to this attitude, even when he threatened to call the police, Caisip went to his co-defendants, Sgt. Rojales and Cpl. Villadelrey, both of the local police, who were some distance away, and brought them with him. Rojales told Gloria, who was then in a squatting position, to stop weeding. As Gloria insisted on her right to stay in said lot, Rojales grabbed her right hand and, twisting the same, wrested therefrom the trowel she was holding. Thereupon, Villadelrey held her left hand and, together with Rojales, forcibly dragged her. The appellants maintain that the Court of Appeals erred in not finding that their acts are justified under Article 429 of the Civil Code.

Issue: Whether Article 429 of the Civil Code applies in the present case.Held: Article 429 is inapplicable, Cabalag was given 20 days from June 6, 1959 within which to vacate the premises. Cabalag did not, on June 17, 1959 — or within said period — invade or usurp said lot. She had merely remained in possession thereof, even though the hacienda owner may have become its co-possessor. Appellants did not “repel or prevent in actual or threatened . . . physical invasion or usurpation.” They expelled Gloria from a property of which she and her husband were in possession.It is urged, that, by weeding and refusing to leave Lot 105-A, Gloria had committed a crime in the presence of the policemen, despite the aforementioned 20-day period, which, appellants claim, the sheriff had no authority to grant. This contention is manifestly untenable, because: (1) said period was granted in the presence of the hacienda owner’s representative, appellant Caisip, who, by not objecting thereto, had impliedly consented to or ratified the act performed by the sheriff; 2) Gloria and her

husband were thereby allowed to remain, and had, in fact, remained, in possession of the premises, perhaps together with the owner of the hacienda or his representative, Caisip; (3) the act of removing weeds from the ricefield was beneficial to its owner and to whomsoever the crops belonged, and, even if they had not authorized it, does not constitute a criminal offense; and (4) although Gloria and her husband had been sentenced to vacate the land, the judgment against them did not necessarily imply that they, as the parties who had tilled it and planted thereon, had no rights, of any kind whatsoever, in or to the standing crops, inasmuch as “necessary expenses shall be refunded to every possessor,” and the cost of cultivation, production and upkeep has been held to partake of the nature of necessary expenses.

It is, accordingly, clear that appellants herein had, by means of violence, and without legal authority therefor, prevented the complainant from “doing something not prohibited by law,” (weeding and being in Lot 105-A), and compelled her “to do something against” her will (stopping the weeding and leaving said lot), “whether it be right or wrong,” thereby taking the law into their hands, in violation of Art. 286 of the Revised Penal Code.

Republic vs. De Knecht, 182 SCRA 142 , G.R. No. 87335, February 12, 1990

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

G.R. No. L-51078 October 30, 1980

CRISTINA DE KNECHT, petitioner, vs.HON. PEDRO JL. BAUTISTA, as Judge presiding over Branch III of the Court of First Instance (Pasay City) and the REPUBLIC OF THE PHILIPPINES, respondents.

 

FERNANDEZ, J.:

This is a petition for certiorari and prohibition filed by Cristina de Knecht against the Honorable Pedro JL. Bautista, as Judge presiding over Branch III of the Court of First Instance of Rizal (Pasay City), and the Republic of the Philippines pines seeking the following relief:

WHEREFORE, petitioner respectfully prays that judgment be rendered annulling the order for immediate possession issued by respondent court in the expropriation proceedings and commanding respondents to desist from further proceedings in the expropriation action or the order for immediate possession issued in said action, with costs.

Petitioner prays that a restraint order or writ of preliminary injunction be issued ex-parte enjoining respondents, their representative representative and agents from enforcing the here questioned order for mediate posession petitioner offering to post a bond executed to the parties enjoined in an amount to be fixed by the Court to the effect that she will pay to such parties all damages which they may sustain by reason of the injunction if the Court should finally decide she is not entitled there

She prays for such other remedy as the Court may deem just and equitable in the premises.

Quezon City for July 1979. 1

The petitioner alleges that than ten (10) years ago, the government through the Department of Public Workmen's and Communication (now MPH) prepared a to Epifanio de los Santos Avenue (EDSA) to Roxas Boulevard; that the proposed extension, an adjunct of building program, the Manila — Cavite Coastal Read Project, would pass through Cuneta Avenue up to Roxas Boulevard that this route would be a straight one taking into account the direction of EDSA; that preparation to the implementation of the aforesaid plan, or on December 13, 1974, then Secretary Baltazar Aquino of the Department of Public Highways directed the City Engineer of Pasay City not to issue temporary or permanent permits for the construction and/or improvement of buildings and other structures located within the proposed extension through Cuneta Avenue that shortly thereafter the Department of Public Highways decided to make the proposed extension go through Fernando Rein and Del Pan Streets which are lined with old substantial houses; that upon learning of the changed the owners of the residential houses that would be affected, the herein petitioner being one of them, filed on April 15, 1977 a formal petition to President Ferdinand E. Marcos asking him to order the Ministry of Public Highways to adoption, the original plan of making the extension of EDSA through Araneta Avenue instead of the new plan going through Fernando Rein and Del Pan Streets; that President Marcos directed then Minister Baltazar Aquino to explain within twenty-four (24) hours why the proposed project should not be suspended; that on April 21, 1977 then Minister Aquino submitted his explanation defending the new proposed route; that the President then referred the matter to the Human Settlements Commission for investigation and recommendation; that after formal hearings to which all the parties proponents and oppositors were given full opportunity to ventilate their views and to present their evidence, the Settlements Commission submitted a report recommending the reversion of the extension of EDSA to the original plan passing through Cuneta Avenue; and that notwithstanding the said report and recommendation, the Ministry of Public Highways insisted on implementing the plan to make the extension of EDSA go through Fernando Rein and Del Pan Streets. 2

In February 1979, the government filed in the Court of First Instance of Rizal, Branch III, Pascual City presided by the respondent Judge, a complaint for expropriation against the owners of the houses standing along Fernando Rein and Del Pan Streets, among them the herein petitioner. The complaint was docketed as Civil Case No. 7001-P and entitled"Republic of the Philippines vs. Concepcion Cabarrus Vda. de Santos, etc."

The herein petitioner filed a motion to dismiss dated March 19, 1979 on the following grounds:

(a) court had no jurisdiction over the subject matter of the action because the complaint failed to allege that the instant project for expropriation bore the approval of the Ministry of Human Settlements and the Metro Manila Government nor pursuant to Presidential Decrees Nos. 824, 1396 and 1517;

(b) The choice of properties to be expropriated made by the Ministry of Public Highways was arbitrary and erroneous;

(c) The complaint was premature as the plaintiff never really had gone through serious negotiations with the defendant for the purchase of her property; and

(d) The complaint relied on an arbitrary and erroneous valuation of properties and disregarded consequential damages.

An urgent motion dated March 28, 1979 for preliminary junction was also filed.

In June 1979 the Republic of the Philippines filed a motion for the issuance of a writ of possession of the property sought to be expropriated on the ground that said Republic had made the required deposit with the Philippine National Bank.

The respondent judge issued a writ of possession dated June 14, 1979 authorizing the Republic of the Philippines to take and enter upon the possession of the properties sought be condemned. 3

The petitioner contends that "Respondent court lacked or exceeded its jurisdiction or gravely abused its discretion in issuing the order to take over and enter upon the possession of the properties sought to be expropriated-petitioner having raised a constitutional question which respondent court must resolve before it can issue an order to take or enter upon the possession of properties sought to be expropriated." 4

The petitioner assails the choice of the Fernando Rein and Del Pan Streets route on the following grounds:

The choice of property to be expropriated cannot be without rhyme or reason. The condemnor may not choose any property it wants. Where the legislature has delegated a power of eminent do-main, the question of the necessity for taking a particular fine for the intended improvement rests in the discretion of the grantee power subject however to review by the courts in case of fraud, bad faith or gross abuse of discretion. The choice of property must be examined for bad faith, arbitrariness or capriciousness and due process determination as to whether or not the proposed location was proper in terms of the public interests. Even the claim of respondent's Secretary Baltazar Aquino that there would be a saving of P2 million under his new plan must be reviewed for it bears no relation to the site of the proposed EDSA extension As envisioned by the government, the EDSA extension would be linked to the Cavite Expressway. Logically then, the proposed extension must point to the south and not detour to the north.

Also, the equal protection of the law must be accorded, not on to the motel owners along Cuneta (Fisher) Avenue, but also to the owners of solid and substantial homes and quality residential lands occupied for generations. 5

The respondents maintain that the respondent court did not act without jurisdiction or exceed its jurisdiction or gravel abuse its discretion in issuing the order dated June 14, 1979 authorizing the Republic of the Philippines to take over and enter the possession of the properties sought to be appropriated because the Republic has complied with all the statutory requirements which entitled it to have immediate possession of the properties involved. 6

Defending the change of the EDSA extension to pass through Fernando Rein — Del Pan Streets, the respondents aver:

'There was no sudden change of plan in the selection of the site of the EDSA Extension to Roxas Blvd. As a matter of fact, when the Ministry of Public Highways decided to change the site of EDSA Ex- tension to Roxas Boulevard from Cuneta Avenue to the Del Pan — Fernando Item Streets the residents of Del Pan and Fernando Rein Streets who were to be adversely affected by the construction of ED — SA Extension to Roxas Boulevard along Del Pan - Fernando Rein Streets were duly notified of such proposed project. Petitioner herein was one of those notified Annex 1). It be conceded that the Cuneta Avenue line goes southward and outward (from the city center while the Del Pan — Fernando Rein Streets line follows northward and inward direction. It must be stated that both lines, Cuneta Avenue and Del Pan — Fernando Rein Streets lines, meet satisfactorily planning and design criteria and therefore are both acceptable. In selecting the Del Pan — Fernando Rein Streets line the Government did not do so because it wanted to save the motel located along Cuneta Avenue but because it wanted to minimize the social impact factor or problem involved. 7

There is no question as to the right of the Republic of the Philippines to take private property for public use upon the payment of just compensation. Section 2, Article IV of the Constitution of the Philippines provides: "Private property shall not be taken for public use without just compensation."

It is recognized, was, that the government may not capriciously or arbitrarily' choose what private property should be taken. In J. M. Tuazon & Co., Inc. vs. Land Tenure administration 31 SCRA, 413, 433, the Supreme Court said:

For the purpose of obtaining a judicial declaration of nullity, it is enough if the respondents or defendants named be the government officials who would give operation and effect to official action allegedly tainted with unconstitutionality. Thus, where the statute assailed was sought to be enforced by the Land Tenure Administrative and the Solicitor General, the two officials may be made respondents in the action without need of including the Executive Secretary as a party in the action

The failure to meet tile exacting standard of due process would likewise constitute a valid objection to the exercise of this congressional power. That was so intimated in the above leading Guido Case. There was an earlier pronouncement to that effect in a decision rendered long before the adoption of the Constitution under the previous organic law then in force, while the Philippines was still an unincorporated territory of the United States.

It is obvious then that a landowner is covered by the mantle of protection due process affords. It is a mandate of reason. It frowns on arbitrariness, it is the antithesis of any governmental act that smacks of whim or caprice. It negates state power to act in an impressive manner. It is, as had been stressed so often, the embodiment of the sporting Idea of fair play. In that sense, it stands as a guaranty of justice. That is the standard that must be met by any government talk agency in the exercise of whatever competence is entrusted to it. As was so emphatically stressed by the present Chief Justice, 'Acts of Congress, as well as those of the Executive, can deny due process only under pain of nullity, ...

In the same case the Supreme Court concluded:

With due recognition then of the power of Congress to designate the particular property to be taken and how much thereof may be condemned in the exercise of the power of expropriation, it is still a judicial question whether in the exercise of such competence, the party adversely affected is the victim of partiality and prejudice. That the equal protection clause will not allow. (p. 436)

In the instant case, it is a fact that the Department of Public Highways originally establish the extension of EDSA along Cuneta Avenue. It is to be presumed that the Department of Public Highways made studies before deciding on Cuneta Avenue. It is indeed odd why suddenly the proposed extension of EDSA to Roxas Boulevard was changed to go through Fernando Rein-Del Pan Streets which the Solicitor General con- cedes "... the Del Pan — Fernando Rein Streets line follows northward and inward direction. While admit "that both lines, Cuneta Avenue and Del Pan — Fernando Rein Streets lines, meet satisfactorily planning and design criteria and therefore are both acceptable ... the Solicitor General justifies the change to Del Pan — Fernando Rein Streets on the ground that the government "wanted to the social impact factor or problem involved." 8

It is doubtful whether the extension of EDSA along Cuneta Avenue can be objected to on the ground of social impact. The improvements and buildings along Cuneta Avenue to be affected by the extension are mostly motels. Even granting,arguendo, that more people be affected, the Human Setlements Commission has suggested coordinative efforts of said Commission with the National Housing Authority and other government agencies in the relocation and resettlement of those adversely affected. 9

The Human Settlements Commission considered conditionality social impact and cost. The pertinent portion of its report reads:

Comparison of Alignment 1 (Cuneta Fisher) and Alignment 2 (Del Pan — Fernando Rein) based on the criteria of functionality, social impact and cost

A. Functionality

This issue has to do with the physical design of a highway, inclusive of engineering factors and management consideration

From both engineering and traffic management viewpoints, it is incontestable that the straighter and shorter alignment is preferable to one which is not. Systematically and diagramatically, alignment 1 is straighter than alignment 2. In fact, Director Antonio Goco of the Department of Public Highways admitted that alignment 2 is three (3) meters longer than alignment 1. Furthermore, alignment 1 is definitely the contour conforming alignment to EDSA whereas alignment 2 affords a greater radius of unnatural curvature as it hooks slightly northward before finally joining with Roxas Boulevard. Besides, whichever alignment is adopted, there will be a need for a grade separator or interchange at the Roxas Boulevard junction. From the of highway design, it is imperative to have interchanges as far apart as possible to avoid traffic from slow down in negotiating the slope on the interchanges. Up north would be the future Buendia Avenue- Roxas Boulevard Interchange. Consequently, alignment 1 which is farther away from Buendia Avenue than alignment 2 is the better alignment from the viewpoint of the construction of the grade separator or interchange, a necessary corollary to the extension project. Finally, the choice of alignment 2 which is longer by three (3) meters than alignment 1 could have serious repercussions on

our energy conservation drive and from the larger perspective of the national economy, considering that, by ad- statistical data, no less than fifty thousand (50,000) vehicles a day will have to traverse an extra three (3) meters.

B. Social Impact

The following factual data which have a direct bearing on the issue of social impact were culled from the records of the case and the evidence presented during the public hearings:

(1) Number of property owners:

Alignment 1 73

Alignment 2 49

(2) Incidence of non-resident owner:

Alignment 1 25 (34.3%)

Alignment 2 31 (63.3%)

(3) Number of actually affected residents:

Alignment 1 547

Alignment 2 290 (estimated)

(4) Average income of residents:

Alignment 2:

Below P350 P350 – P500 P 500 – P 800 P800 – Pl000 Over P1000 16 (28%) 24 (42%) 0 (14%) 5 (9%) 4 (7%)

Alignment 2: Figures not available.

It is evident from the foregoing figures that social impact is greater on the residents of alignment 1.

C. Cost

The resolution of the issue of right-of-way acquisition cost depends to a large extend on the nature of the properties to be affected and the relative value thereof. A comparison of alignment 1 and alignment 2 on these two points has produced the following results:

(1) Nature and number of properties involved:

Line I Line 2

Lots

Lots

Improvement

Lots

Improvements

Residential

41 46 38 34

Commercial

25 24 11 13

Industrial

5 3 1 1

Church

1 1 1 1

Educational

_ _ _ _

TOTAL

72 75 51 49

(2) Relative value of properties affected:

Lots

Improvements

Total

Alignment 1

P9,300,136

P5,928,680

P15,228,816

Alignment 2

8,314,890

6,644,130

14,959,020

Difference

P269,796

It is obvious from the immediately table that the right- of-way acquisition cost difference factor of the two alignment is only P269,196 and not P2M as alleged by the Department of Public Highways and P1.2M as claimed by the oppositors. Consequently, the cost difference factor between the two alignments is so minimal as to be practically nil in the consideration of the issues involved in this case. 10

After considering all the issues and factors, the Human Setlements Commission made the following recommendations:

Weighing in the balance the issues and factors of necessity, functionality, impact, cost and property valuation as basis for scheme of compensation to be adopted in the instant case, the Hearing Board takes cognizance of the following points:

1. The EDSA extension to Roxas Boulevard is necessary and desirable from the strictly technical viewpoint and the overall perspective of the Metro Manila transport system.

2. The right-of-way acquisition cost difference factor is so minimal as to influence in any way the choice of either alignment as the extension of EDSA to Roxas Boulevard.

3. The negotiated sale approach to compensation as proposed should apply to a whichever alignment is selected.

4. The factor of functionality states strongly against the selection of alignment 2 while the factor of great social and economic impact bears grieviously on the residents of alignment 1.

The course of the decision in this case consequently boils down to the soul-searching and heart-rending choice between people on one hand and progress and development on the other. In deciding in favor of the latter, the Hearing Board is not unmindful that progress and development are carried out by the State precisely and ultimately for the benefit of its people and therefore, recommends the reverend of the extension project to alignment 1. However, before the Government, through its implementing agencies, particularly the Department of Public Highways, undertakes the actual step of appropriating properties on alignment I to pave the way for the extension the hearing Board recommends the following as absolute. binding and imperative preconditions:

1. The preparation, and ignore importantly, the execution of a comprehensive and detailed plan for the relocation and resettlement of the adversely and genuinely affected residents of alignment I which will necessitate the coordinative efforts of such agencies as the Human Settlements Commission, the National Housing Authority and other such governmental agencies. To be concrete, a self sufficient community or human settlement complete with infrastructure capture market, school, church and industries for employment should be set up to enable the affected residents of alignment 1 to maintain, their present social and economic standing.

2. The prompt payment of fair and just compensation through the negotiated sale approach.

Finally, the Hearing Board recommends that the Department of Public Highways conduct public hearings before undertaking on future expropriations of private properties for public use.

Respectfully submitted to the Human Settlements Commission Commissioners for consideration, final disposition and endorsement thereof to His Excellency, the President of the Philippines.

Makati, Metro Manila, July 4, 1977. 11

... From all the foregoing, the facts of record and recommendations of the Human Settlements Commission, it is clear that the choice of Fernando Rein — Del Pan Streets as the line through which the Epifanio de los Santos Avenue should be extended to Roxas Boulevard is arbitrary and should not receive judicial approval. The respondent judge committed a grave abuse of discretion in allowing the Republic of the Philippines to take immediate possession of the properties sought to be expropriated.

WHEREFORE, the petition for certiorari and prohibition is hereby granted. The order of June 14, 1979 authorizing the Republic of the Philippines to take or enter upon the possession of the properties sought to be condemned is set aside and the respondent Judge is permanently enjoined from taking any further action on Civil Case No. 7001-P, entitled"Republic of the Philippines vs. Concepcion Cabarrus Vda. de Santos, etc." except to dismiss said case.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-14355             October 31, 1919

THE CITY OF MANILA, plaintiff-appellant, vs.CHINESE COMMUNITY OF MANILA, ET AL., defendants-appellees.

City Fiscal Diaz for appellant. Crossfield and O'Brien, Williams, Ferrier and Sycip, Delgado and Delgado, Filemon Sotto, and Ramon Salinas for appellees.

 

JOHNSON, J.:

The important question presented by this appeal is: In expropriation proceedings by the city of Manila, may the courts inquire into, and hear proof upon, the necessity of the expropriation?

That question arose in the following manner:

On the 11th day of December, 1916, the city of Manila presented a petition in the Court of First Instance of said city, praying that certain lands, therein particularly described, be expropriated for the purpose of constructing a public improvement. The petitioner, in the second paragraph of the petition, alleged:

That for the purpose of constructing a public improvement, namely, the extension of Rizal Avenue, Manila, it is necessary for the plaintiff to acquire ownership in fee simple of certain parcels of land situated in the district of Binondo of said city within Block 83 of said district, and within the jurisdiction of this court.

The defendant, the Comunidad de Chinos de Manila [Chinese Community of Manila], answering the petition of the plaintiff, alleged that it was a corporation organized and existing under and by virtue of the laws of the Philippine Islands, having for its purpose the benefit and general welfare of the Chinese Community of the City of Manila; that it was the owner of parcels one and two of the land described in paragraph 2 of the complaint; that it denied that it was either necessary or expedient that the said parcels be expropriated for street purposes; that existing street and roads furnished ample means of communication for the public in the district covered by such proposed expropriation; that if the construction of the street or road should be considered a public necessity, other routes were available, which would fully satisfy the plaintiff's purposes, at much less expense and without disturbing the resting places of the dead; that it had a Torrens title for the lands in question; that the lands in question had been used by the defendant for cemetery purposes; that a great number of Chinese were buried in said cemetery; that if said expropriation be carried into effect, it would disturb the resting places of the dead, would require the expenditure of a large sum of money in the transfer or removal of the bodies to some other place or site and in the purchase of such new sites, would involve the destruction of existing monuments and the erection of new monuments in their stead, and would create irreparable loss and injury to the defendant and to all those persons owning and interested in the graves and monuments which would have to be destroyed; that the plaintiff was without right or authority to expropriate said cemetery or any part or portion thereof for street purposes; and that the expropriation, in fact, was not necessary as a public improvement.

The defendant Ildefonso Tambunting, answering the petition, denied each and every allegation of the complaint, and alleged that said expropriation was not a public improvement; that it was not necessary for the plaintiff to acquire the parcels of land in question; that a portion of the lands in question was used as a cemetery in which were the graves of his ancestors; that monuments and tombstones of great value were found thereon; that the land had become quasi-public property of a benevolent association, dedicated and used for the burial of the dead and that many dead were buried there; that if the plaintiff deemed it necessary to extend Rizal Avenue, he had offered and still offers to grant a right of way for the said extension over other land, without cost to the plaintiff, in order that the sepulchers, chapels and graves of his ancestors may not be disturbed; that the land so offered, free of charge, would answer every public necessity on the part of the plaintiff.

The defendant Feliza Concepcion de Delgado, with her husband, Jose Maria Delgado, and each of the other defendants, answering separately, presented substantially the same defense as that presented by the Comunidad de Chinos de Manila and Ildefonso Tambunting above referred to.

The foregoing parts of the defense presented by the defendants have been inserted in order to show the general character of the defenses presented by each of the defendants. The plaintiff alleged that the expropriation was necessary. The defendants each alleged (a) that no necessity existed for said expropriation and (b) that the land in question was a cemetery, which had been used as such for many years, and was covered with sepulchres and monuments, and that the same should not be converted into a street for public purposes.

Upon the issue thus presented by the petition and the various answers, the Honorable Simplicio del Rosario, judge, in a very elucidated opinion, with very clear and explicit reasons, supported by ambulance of authorities, decided that there was no necessity for the expropriation of the particular strip of land in question, and absolved each and all of the defendants from all liability under the complaint, without any finding as to costs.

From that judgment the plaintiff appealed and presented the above question as its principal ground of appeal.

The theory of the plaintiff is, that once it has established the fact, under the law, that it has authority to expropriate land, it may expropriate any land it may desire; that the only function of the court in such proceedings is to ascertain the value of the land in question; that neither the court nor the owners of the land can inquire into the advisible purpose of purpose of the expropriation or ask any questions concerning the necessities therefor; that the courts are mere appraisers of the land involved in expropriation proceedings, and, when the value of the land is fixed by the method adopted by the law, to render a judgment in favor of the defendant for its value.

That the city of Manila has authority to expropriate private lands for public purposes, is not denied. Section 2429 of Act No. 2711 (Charter of the city of Manila) provides that "the city (Manila) . . . may condemn private property forpublic use."

The Charter of the city of Manila contains no procedure by which the said authority may be carried into effect. We are driven, therefore, to the procedure marked out by Act No. 190 to ascertain how the said authority may be exercised. From an examination of Act No. 190, in its section 241, we find how the right of eminent domain may be exercised. Said section 241 provides that, "The Government of the Philippine Islands, or of any province or department thereof, or of any municipality, and any person, or public or private corporation having, by law, the right to condemn private property for public use, shall exercise that right in the manner hereinafter prescribed."

Section 242 provides that a complaint in expropriation proceeding shall be presented; that the complaint shall state with certainty the right of condemnation, with a description of the property sought to be condemned together with the interest of each defendant separately.

Section 243 provides that if the court shall find upon trial that the right to expropriate the land in question exists, it shall then appoint commissioners.

Sections 244, 245 and 246 provide the method of procedure and duty of the commissioners. Section 248 provides for an appeal from the judgment of the Court of First Instance to the Supreme Court. Said section 248 gives the Supreme Court authority to inquire into the right of expropriation on the part of the plaintiff. If the Supreme Court on appeal shall determine that no right of expropriation existed, it shall remand the cause to the Court of First Instance with a mandate that the defendant be replaced in the possession of the property and that he recover whatever damages he may have sustained by reason of the possession of the plaintiff.

It is contended on the part of the plaintiff that the phrase in said section, "and if the court shall find the right to expropriate exists," means simply that, if the court finds that there is some law authorizing the plaintiff to expropriate, then the courts have no other function than to authorize the expropriation and to proceed to ascertain the value of the land involved; that the necessity for the expropriation is a legislative and not a judicial question.

Upon the question whether expropriation is a legislative function exclusively, and that the courts cannot intervene except for the purpose of determining the value of the land in question, there is much legal legislature. Much has been written upon both sides of that question. A careful examination of the discussions pro and con will disclose the fact that the decisions depend largely upon particular constitutional or statutory provisions. It cannot be denied, if the legislature under proper authority should grant the expropriation of a certain or particular parcel of land for some specified public purpose, that the courts would be without jurisdiction to inquire into the purpose of that legislation.

If, upon the other hand, however, the Legislature should grant general authority to a municipal corporation to expropriate private land for public purposes, we think the courts have ample authority in this jurisdiction, under the provisions above quoted, to make inquiry and to hear proof, upon an issue properly presented, concerning whether or not the lands were private and whether the purpose was, in fact, public. In other words, have no the courts in this jurisdiction the right, inasmuch as the questions relating to expropriation must be referred to them (sec. 241, Act No. 190) for final decision, to ask whether or not the law has been complied with? Suppose in a particular case, it should be denied that the property is not private property but public, may not the courts hear proof upon that question? Or, suppose the defense is, that the purpose of the expropriation is not public butprivate, or that there exists no public purpose at all, may not the courts make inquiry and hear proof upon that question?

The city of Manila is given authority to expropriate private lands for public purposes. Can it be possible that said authority confers the right to determine for itself that the land is private and that the purpose is public, and that the people of the city of Manila who pay the taxes for its support, especially those who are directly affected, may not question one or the other, or both, of these questions? Can it be successfully contended that the phrase used in Act No. 190, "and if the court upon trial shall find that such right exists," means simply that the court shall examine the statutes simply for the purpose of ascertaining whether a law exists authorizing the petitioner to exercise the right of eminent domain? Or, when the case arrives in the Supreme Court, can it be possible that the phrase, "if the Supreme Court shall determine that no right of expropriation exists," that that simply means that the Supreme Court shall also examine the enactments of the legislature for the purpose of determining whether or not a law exists permitting the plaintiff to expropriate?

We are of the opinion that the power of the court is not limited to that question. The right of expropriation is not an inherent power in a municipal corporation, and before it can exercise the right some law must exist conferring the power upon it. When the courts come to determine the question, they must only find (a) that a law or authority exists for the exercise of the right of eminent domain, but (b) also that the right or authority is being exercised in accordance with the law. In the present case there are two conditions imposed upon the authority conceded to the City of Manila: First, the land must be private; and, second, the purpose must be public. If the court, upon trial, finds that neither of these conditions exists or that either one of them fails, certainly it cannot be contended that the right is being exercised in accordance with law.

Whether the purpose for the exercise of the right of eminent domain is public, is a question of fact. Whether the land is public, is a question of fact; and, in our opinion, when the legislature conferred upon the courts of the Philippine Islands the right to ascertain upon trial whether the right exists for

the exercise of eminent domain, it intended that the courts should inquire into, and hear proof upon, those questions. Is it possible that the owner of valuable land in this jurisdiction is compelled to stand mute while his land is being expropriated for a use not public, with the right simply to beg the city of Manila to pay him the value of his land? Does the law in this jurisdiction permit municipalities to expropriate lands, without question, simply for the purpose of satisfying the aesthetic sense of those who happen for the time being to be in authority? Expropriation of lands usually calls for public expense. The taxpayers are called upon to pay the costs. Cannot the owners of land question the public use or the public necessity?

As was said above, there is a wide divergence of opinion upon the authority of the court to question the necessity or advisability of the exercise of the right of eminent domain. The divergence is usually found to depend upon particular statutory or constitutional provisions.

It has been contended — and many cases are cited in support of that contention, and section 158 of volume 10 of Ruling Case Law is cited as conclusive — that the necessity for taking property under the right of eminent domain is not a judicial question. But those who cited said section evidently overlooked the section immediately following (sec. 159), which adds: "But it is obvious that if the property is taken in the ostensible behalf of a public improvement which it can never by any possibility serve, it is being taken for a use not public, and the owner's constitutional rights call for protection by the courts. While many courts have used sweeping expression in the decisions in which they have disclaimed the power of supervising the power of supervising the selection of the sites of public improvements, it may be safely said that the courts of the various states would feel bound to interfere to prevent an abuse of the discretion delegated by the legislature, by an attempted appropriation of land in utter disregard of the possible necessity of its use, or when the alleged purpose was a cloak to some sinister scheme." (Norwich City vs. Johnson, 86 Conn., 151; Bell vs. Mattoon Waterworks, etc. Co., 245 Ill., 544; Wheeling, etc. R. R. Co. vs. Toledo Ry. etc. Co., 72 Ohio St., 368; State vs. Stewart, 74 Wis., 620.)

Said section 158 (10 R. C. L., 183) which is cited as conclusive authority in support of the contention of the appellant, says:

The legislature, in providing for the exercise of the power of eminent domain, may directly determine the necessity for appropriating private property for a particular improvement for public use, and it may select the exact location of the improvement. In such a case, it is well settled that the utility of the proposed improvement, the extent of the public necessity for its construction, the expediency of constructing it, the suitableness of the location selected and the consequent necessity of taking the land selected for its site, are all questions exclusively for the legislature to determine, and the courts have no power to interfere, or to substitute their own views for those of the representatives of the people.

Practically every case cited in support of the above doctrine has been examined, and we are justified in making the statement that in each case the legislature directly determined the necessity for the exercise of the right of eminent domain in the particular case. It is not denied that if the necessity for the exercise of the right of eminent domain is presented to the legislative department of the government and that department decides that there exists a necessity for the exercise of the right in a particular case, that then and in that case, the courts will not go behind the action of the legislature and make inquiry concerning the necessity. But, in the case of Wheeling, etc. R. R. Co. vs. Toledo, Ry, etc., Co. (72 Ohio St., 368 [106 Am. St. rep., 622, 628]), which was cited in support of the doctrine laid down in section 158 above quoted, the court said:

But when the statute does not designate the property to be taken nor how may be taken, then the necessity of taking particular property is a question for the courts. Where the

application to condemn or appropriate is made directly to the court, the question (of necessity) should be raised and decided in limene.

The legislative department of the government was rarely undertakes to designate the precise property which should be taken for public use. It has generally, like in the present case, merely conferred general authority to take land for public use when a necessity exists therefor. We believe that it can be confidently asserted that, under such statute, the allegation of the necessity for the appropriation is an issuable allegation which it is competent for the courts to decide. (Lynch vs. Forbes, 161 Mass., 302 [42 Am. St. Rep., 402, 407].)

There is a wide distinction between a legislative declaration that a municipality is given authority to exercise the right of eminent domain, and a decision by the municipality that there exist a necessity for the exercise of that right in a particular case. The first is a declaration simply that there exist reasons why the right should be conferred upon municipal corporation, while the second is the application of the right to a particular case. Certainly, the legislative declaration relating to the advisability of granting the power cannot be converted into a declaration that a necessity exists for its exercise in a particular case, and especially so when, perhaps, the land in question was not within the territorial authority was granted.

Whether it was wise, advisable, or necessary to confer upon a municipality the power to exercise the right of eminent domain, is a question with which the courts are not concerned. But when that right or authority is exercised for the purpose of depriving citizens of their property, the courts are authorized, in this jurisdiction, to make inquiry and to hear proof upon the necessity in the particular case, and not the general authority.

Volume 15 of the Cyclopedia of Law and Procedure (Cyc.), page 629, is cited as a further conclusive authority upon the question that the necessity for the exercise of the right of eminent domain is a legislative and not a judicial question. Cyclopedia, at the page stated, says:

In the absence of some constitutional or statutory provision to the contrary, the necessity and expediency of exercising the right of eminent domain are questions essentially political and not judicial in their character. The determination of those questions (the necessity and the expediency) belongs to the sovereign power; the legislative department is final and conclusive, and the courts have no power to review it (the necessity and the expediency) . . . . It (the legislature) may designate the particular property to be condemned, and its determination in this respect cannot be reviewed by the courts.

The volume of Cyclopedia, above referred to, cites many cases in support of the doctrine quoted. While time has not permitted an examination of all of said citations, many of them have been examined, and it can be confidently asserted that said cases which are cited in support of the assertion that, "the necessity and expediency of exercising the right of eminent domain are questions essentially political and not judicial," show clearly and invariably that in each case the legislature itself usually, by a special law, designated the particular case in which the right of eminent domain might be exercised by the particular municipal corporation or entity within the state. (Eastern R. Co. vs. Boston, etc., R. Co., 11 Mass., 125 [15 Am. Rep., 13]; Brooklyn Park Com'rs vs. Armstrong, 45 N.Y., 234 [6 Am. Rep., 70]; Hairston vs. Danville, etc. Ry. Co., 208 U. S. 598; Cincinnati vs. Louisville, etc. Ry. Co., 223 U. S., 390; U.S. vs. Chandler-Dunbar Water Power Co., 229 U. S., 53; U.S. vs. Gettysburg, etc. Co., 160 U. S., 668; Traction Co. vs. Mining Co., 196 U.S., 239; Sears vs. City of Akron, 246 U.S., 351 [erroneously cited as 242 U.S.].)

In the case of Traction Co. vs. Mining Co. (196 U.S., 239), the Supreme Court of the United States said: "It is erroneous to suppose that the legislature is beyond the control of the courts in exercising

the power of eminent domain, either as to the nature of the use or the necessity to the use of any particular property. For if the use be not public or no necessity for the taking exists, the legislature cannot authorize the taking of private property against the will of the owner, notwithstanding compensation may be required."

In the case of School Board of Carolina vs. Saldaña (14 Porto Rico, 339, 356), we find the Supreme Court of Porto Rico, speaking through Justice MacLeary, quoting approvingly the following, upon the question which we are discussing: "It is well settled that although the legislature must necessarily determine in the first instance whether the use for which they (municipalities, etc.) attempt to exercise the power is a public one or not, their (municipalities, etc.) determination is not final, but is subject to correction by the courts, who may undoubtedly declare the statute unconstitutional, if it shall clearly appear that the use for which it is proposed to authorize the taking of private property is in reality not public but private." Many cases are cited in support of that doctrine.

Later, in the same decision, we find the Supreme Court of Porto Rico says: "At any rate, the rule is quite well settled that in the cases under consideration the determination of the necessity of taking a particular piece or a certain amount of land rests ultimately with the courts." (Spring Valley etc. Co. vs. San Mateo, etc. Co., 64 Cal., 123.) .

In the case of Board of Water Com'rs., etc. vs. Johnson (86 Conn., 571 [41 L. R. A., N. S., 1024]), the Supreme Court of Connecticut approvingly quoted the following doctrine from Lewis on Eminent Domain (3d ed.), section 599: "In all such cases the necessity of public utility of the proposed work or improvement is a judicial question. In all such cases, where the authority is to take property necessary for the purpose, the necessity of taking particular property for a particular purpose is a judicial one, upon which the owner is entitled to be heard." (Riley vs.Charleston, etc. Co., 71 S. C., 457, 489 [110 Am. St. Rep., 579]; Henderson vs. Lexington 132 Ky., 390, 403.)

The taking of private property for any use which is not required by the necessities or convenience of the inhabitants of the state, is an unreasonable exercise of the right of eminent domain, and beyond the power of the legislature to delegate. (Bennett vs. Marion, 106 Iowa, 628, 633; Wilson vs. Pittsburg, etc. Co., 222 Pa. St., 541, 545; Greasy, etc. Co. vs. Ely, etc. Co., 132 Ky., 692, 697.)

In the case of New Central Coal Co. vs. George's etc. Co. (37 Md., 537, 564), the Supreme Court of the State of Maryland, discussing the question before us, said: "To justify the exercise of this extreme power (eminent domain) where the legislature has left it to depend upon the necessity that may be found to exist, in order to accomplish the purpose of the incorporation, as in this case, the party claiming the right to the exercise of the power should be required to show at least a reasonable degree of necessity for its exercise. Any rule less strict than this, with the large and almost indiscriminate delegation of the right to corporations, would likely lead to oppression and the sacrifice of private right to corporate power."

In the case of Dewey vs. Chicago, etc. Co. (184 Ill., 426, 433), the court said: "Its right to condemn property is not a general power of condemnation, but is limited to cases where a necessity for resort to private property is shown to exist. Such necessity must appear upon the face of the petition to condemn. If the necessary is denied the burden is upon the company (municipality) to establish it." (Highland, etc. Co. vs. Strickley, 116 Fed., 852, 856; Kiney vs. Citizens' Water & Light Co., 173 Ind., 252, 257 ; Bell vs. Mattoon Waterworks, etc. Co., 245 Ill., 544 [137 Am. St. Rep. 338].)

It is true that naby decisions may be found asserting that what is a public use is a legislative question, and many other decisions declaring with equal emphasis that it is a judicial question. But, as long as there is a constitutional or statutory provision denying the right to take land for any use

other than a public use, it occurs to us that the question whether any particular use is a public one or not is ultimately, at least, a judicial question. The legislative may, it is true, in effect declare certain uses to be public, and, under the operation of the well-known rule that a statute will not be declared to be unconstitutional except in a case free, or comparatively free, from doubt, the courts will certainly sustain the action of the legislature unless it appears that the particular use is clearly not of a public nature. The decisions must be understood with this limitation; for, certainly, no court of last resort will be willing to declare that any and every purpose which the legislative might happen to designate as a public use shall be conclusively held to be so, irrespective of the purpose in question and of its manifestly private character Blackstone in his Commentaries on the English Law remarks that, so great is the regard of the law for private property that it will not authorize the least violation of it, even for the public good, unless there exists a very great necessity therefor.

In the case of Wilkinson vs. Leland (2 Pet. [U.S.], 657), the Supreme Court of the United States said: "That government can scarcely be deemed free where the rights of property are left solely defendant on the legislative body, without restraint. The fundamental maxims of free government seem to require that the rights of personal liberty and private property should be held sacred. At least no court of justice in this country would be warranted in assuming that the power to violate and disregard them — a power so repugnant to the common principles of justice and civil liberty — lurked in any general grant of legislature authority, or ought to be implied from any general expression of the people. The people ought no to be presumed to part with rights so vital to their security and well-being without very strong and direct expression of such intention." (Lewis on Eminent Domain, sec. 603; Lecoul vs. Police Jury 20 La. Ann., 308; Jefferson vs. Jazem, 7 La. Ann., 182.)

Blackstone, in his Commentaries on the English Law said that the right to own and possess land — a place to live separate and apart from others — to retain it as a home for the family in a way not to be molested by others — is one of the most sacred rights that men are heirs to. That right has been written into the organic law of every civilized nation. The Acts of Congress of July 1, 1902, and of August 29, 1916, which provide that "no law shall be enacted in the Philippine Islands which shall deprive any person of his property without due process of law," are but a restatement of the time-honored protection of the absolute right of the individual to his property. Neither did said Acts of Congress add anything to the law already existing in the Philippine Islands. The Spaniard fully recognized the principle and adequately protected the inhabitants of the Philippine Islands against the encroachment upon the private property of the individual. Article 349 of the Civil Code provides that: "No one may be deprived of his property unless it be by competent authority, for some purpose of proven public utility, and after payment of the proper compensation Unless this requisite (proven public utility and payment) has been complied with, it shall be the duty of the courts to protect the owner of such property in its possession or to restore its possession to him , as the case may be."

The exercise of the right of eminent domain, whether directly by the State, or by its authorized agents, is necessarily in derogation of private rights, and the rule in that case is that the authority must be strictly construed. No species of property is held by individuals with greater tenacity, and none is guarded by the constitution and laws more sedulously, than the right to the freehold of inhabitants. When the legislature interferes with that right, and, for greater public purposes, appropriates the land of an individual without his consent, the plain meaning of the law should not be enlarged by doubtly interpretation. (Bensely vs. Mountainlake Water Co., 13 Cal., 306 and cases cited [73 Am. Dec., 576].)

The statutory power of taking property from the owner without his consent is one of the most delicate exercise of government authority. It is to be watched with jealous scrutiny. Important as the power may be to the government, the inviolable sanctity which all free constitutions attach to the right of property of the citizens, constrains the strict observance of the substantial provisions of the law

which are prescribed as modes of the exercise of the power, and to protect it from abuse. Not only must the authority of municipal corporations to take property be expressly conferred and the use for which it is taken specified, but the power, with all constitutional limitation and directions for its exercise, must be strictly pursued. (Dillon on Municipal Corporations [5th Ed.], sec. 1040, and cases cited; Tenorio vs. Manila Railroad Co., 22 Phil., 411.)

It can scarcely be contended that a municipality would be permitted to take property for some public use unless some public necessity existed therefor. The right to take private property for public use originates in the necessity, and the taking must be limited by such necessity. The appellant contends that inasmuch as the legislature has given it general authority to take private property for public use, that the legislature has, therefore, settled the question of the necessity in every case and that the courts are closed to the owners of the property upon that question. Can it be imagined, when the legislature adopted section 2429 of Act No. 2711, that it thereby declared that it was necessary to appropriate the property of Juan de la Cruz, whose property, perhaps, was not within the city limits at the time the law was adopted? The legislature, then, not having declared the necessity, can it be contemplated that it intended that a municipality should be the sole judge of the necessity in every case, and that the courts, in the face of the provision that "if upon trial they shall find that a right exists," cannot in that trial inquire into and hear proof upon the necessity for the appropriation in a particular case?

The Charter of the city of Manila authorizes the taking of private property for public use. Suppose the owner of the property denies and successfully proves that the taking of his property serves no public use: Would the courts not be justified in inquiring into that question and in finally denying the petition if no public purpose was proved? Can it be denied that the courts have a right to inquire into that question? If the courts can ask questions and decide, upon an issue properly presented, whether the use is public or not, is not that tantamount to permitting the courts to inquire into the necessity of the appropriation? If there is no public use, then there is no necessity, and if there is no necessity, it is difficult to understand how a public use can necessarily exist. If the courts can inquire into the question whether a public use exists or not, then it seems that it must follow that they can examine into the question of the necessity.

The very foundation of the right to exercise eminent domain is a genuine necessity, and that necessity must be of a public character. The ascertainment of the necessity must precede or accompany, and not follow, the taking of the land. (Morrison vs. Indianapolis, etc. Ry. Co., 166 Ind., 511; Stearns vs. Barre, 73 Vt., 281; Wheeling, etc. R. R. Co. vs. Toledo, Ry. etc. Co., 72 Ohio St., 368.)

The general power to exercise the right of eminent domain must not be confused with the right to exercise it in aparticular case. The power of the legislature to confer, upon municipal corporations and other entities within the State, general authority to exercise the right of eminent domain cannot be questioned by the courts, but that general authority of municipalities or entities must not be confused with the right to exercise it in particular instances. The moment the municipal corporation or entity attempts to exercise the authority conferred, it must comply with the conditions accompanying the authority. The necessity for conferring the authority upon a municipal corporation to exercise the right of eminent domain is admittedly within the power of the legislature. But whether or not the municipal corporation or entity is exercising the right in a particular case under the conditions imposed by the general authority, is a question which the courts have the right to inquire into.

The conflict in the authorities upon the question whether the necessity for the exercise of the right of eminent domain is purely legislative and not judicial, arises generally in the wisdom and propriety of

the legislature in authorizing the exercise of the right of eminent domain instead of in the question of the right to exercise it in a particular case. (Creston Waterworks Co. vs. McGrath, 89 Iowa, 502.)

By the weight of authorities, the courts have the power of restricting the exercise of eminent domain to the actual reasonable necessities of the case and for the purposes designated by the law. (Fairchild vs. City of St. Paul. 48 Minn., 540.)

And, moreover, the record does not show conclusively that the plaintiff has definitely decided that their exists a necessity for the appropriation of the particular land described in the complaint. Exhibits 4, 5, 7, and E clearly indicate that the municipal board believed at one time that other land might be used for the proposed improvement, thereby avoiding the necessity of distributing the quiet resting place of the dead.

Aside from insisting that there exists no necessity for the alleged improvements, the defendants further contend that the street in question should not be opened through the cemetery. One of the defendants alleges that said cemetery is public property. If that allegations is true, then, of course, the city of Manila cannot appropriate it for public use. The city of Manila can only expropriate private property.

It is a well known fact that cemeteries may be public or private. The former is a cemetery used by the general community, or neighborhood, or church, while the latter is used only by a family, or a small portion of the community or neighborhood. (11 C. J., 50.)

Where a cemetery is open to public, it is a public use and no part of the ground can be taken for other public uses under a general authority. And this immunity extends to the unimproved and unoccupied parts which are held in good faith for future use. (Lewis on Eminent Domain, sec. 434, and cases cited.)

The cemetery in question seems to have been established under governmental authority. The Spanish Governor-General, in an order creating the same, used the following language:

The cemetery and general hospital for indigent Chinese having been founded and maintained by the spontaneous and fraternal contribution of their protector, merchants and industrials, benefactors of mankind, in consideration of their services to the Government of the Islands its internal administration, government and regime must necessarily be adjusted to the taste and traditional practices of those born and educated in China in order that the sentiments which animated the founders may be perpetually effectuated.

It is alleged, and not denied, that the cemetery in question may be used by the general community of Chinese, which fact, in the general acceptation of the definition of a public cemetery, would make the cemetery in question public property. If that is true, then, of course, the petition of the plaintiff must be denied, for the reason that the city of Manila has no authority or right under the law to expropriate public property.

But, whether or not the cemetery is public or private property, its appropriation for the uses of a public street, especially during the lifetime of those specially interested in its maintenance as a cemetery, should be a question of great concern, and its appropriation should not be made for such purposes until it is fully established that the greatest necessity exists therefor.

While we do not contend that the dead must not give place to the living, and while it is a matter of public knowledge that in the process of time sepulchres may become the seat of cities and

cemeteries traversed by streets and daily trod by the feet of millions of men, yet, nevertheless such sacrifices and such uses of the places of the dead should not be made unless and until it is fully established that there exists an eminent necessity therefor. While cemeteries and sepulchres and the places of the burial of the dead are still within the memory and command of the active care of the living; while they are still devoted to pious uses and sacred regard, it is difficult to believe that even the legislature would adopt a law expressly providing that such places, under such circumstances, should be violated.

In such an appropriation, what, we may ask, would be the measure of damages at law, for the wounded sensibilities of the living, in having the graves of kindred and loved ones blotted out and desecrated by a common highway or street for public travel? The impossibility of measuring the damage and inadequacy of a remedy at law is too apparent to admit of argument. To disturb the mortal remains of those endeared to us in life sometimes becomes the sad duty of the living; but, except in cases of necessity, or for laudable purposes, the sanctity of the grave, the last resting place of our friends, should be maintained, and the preventative aid of the courts should be invoked for that object. (Railroad Company vs. Cemetery Co., 116 Tenn., 400; Evergreen Cemetery Associationvs. The City of New Haven, 43 Conn., 234; Anderson vs. Acheson, 132 Iowa, 744; Beatty vs. Kurtz, 2 Peters, 566.)

In the present case, even granting that a necessity exists for the opening of the street in question, the record contains no proof of the necessity of opening the same through the cemetery. The record shows that adjoining and adjacent lands have been offered to the city free of charge, which will answer every purpose of the plaintiff.

For all of the foregoing, we are fully persuaded that the judgment of the lower court should be and is hereby affirmed, with costs against the appellant. So ordered.

Arellano, C.J., Torres, Araullo and Avanceña, JJ., concur.

 

 

 

Separate Opinions

 

MALCOLM, J., concurring:

The Government of the Philippine Islands is authorized by the Philippine Bill to acquire real estate for public use by the exercise of the right of eminent domain. (Act of Congress of July 1, 1902, sec. 63.) A portion of this power has been delegated by the Philippine Legislature to the city of Manila, which is permitted to "condemn private property for public use." (Administrative Code of 1917, sec. 2429.) The Code of Civil Procedure, in prescribing how the right of eminent domain may be exercised, also limits the condemnation to "private property for public use." (Sec. 241.) As under the facts actually presented, there can be no question that a public street constitutes a public use, the only remaining question is whether or not the Chinese Cemetery and the other property here sought to be taken by the exercise of the right of eminent domain is "private property."

As narrowing our inquiry still further, let it be noted that cemeteries are of two classes, public and private. A public cemetery is one used by the general community, or neighborhood, or church; while a private cemetery is one used only by a family, or small portion of a community. (Lay vs. State, 12 Ind. App., 362; Cemetery Association vs.Meninger [1875], 14 Kan., 312.) Our specific question, then, is, whether the Chinese Cemetery in the city of Manila is a public, or a private graveyard. If it be found to be the former, it is not subject to condemnation by the city of Manila; if it be found to be the latter, it is subject to condemnation.

The Chinese Cemetery of Manila was established during the Spanish administration in the Philippines by public spirited Chinese. The order of the Governor-General giving governmental recognition to the cemetery reads as follows: "The cemetery and general hospital for indigent Chinese having been founded and maintained by the spontaneous and fraternal contribution of their protectors, merchants and industrials, benefactors of mankind, in consideration of their services to the Government of the Islands, its internal administration, government and regime, must necessarily be adjusted to the taste and traditional practices of those born and educated in China in order that the sentiments which animated the founders may be perpetually effectuated." Sometimes after the inauguration of the new regime in the Philippines, a corporation was organized to control the cemetery, and a Torrens title for the lands in question was obtained.

From the time of its creation until the present the cemetery has been used by the Chinese community for the burial of their dead. It is said that not less than four hundred graves, many of them with handsome monuments, would be destroyed by the proposed street. This desecration is attempted as to the las t resting places of the dead of a people who, because of their peculiar and ingrained ancestral workship, retain more than the usual reverence for the departed. These facts lead us straight to the conclusion that the Chinese Cemetery is not used by a family or a small portion of a community but by a particular race long existing in the country and of considerable numbers. The case, then, is one of where the city of Manila, under a general authority permitting it to condemn private property for public use, is attempting to convert a property already dedicated to a public use to an entirely different public use; and this, not directly pursuant to legislative authority, but primarily through the sole advice of the consulting architect.

Two well considered decisions coming from the American state courts on almost identical facts are worthy of our consideration. The first is the case of The Evergreen Cemetery Association vs. The City of New Haven ([1875], 43 Conn., 234), of cited by other courts. Here the City of New Haven, Connecticut, under the general power conferred upon it to lay out, construct, and maintain all necessary highways within its limits, proceeded to widen and straighten one of its streets and in so doing took a small piece of land belonging to the Evergreen Cemetery Association. This association was incorporated under the general statute. The city had no special power to take any part of the cemetery for such purposes. It was found that the land taken was needed for the purposes of the cemetery and was not needed for the purpose of widening and straightening the avenue. The court said that it is unquestionable that the Legislature has the power to authorize the taking of land already applied to one public use and devote it to another. When the power is granted to municipal or private corporations in express words, no question can arise. But, it was added, "The same land cannot properly be used for burial lots and for a public highway at the same time. . . . Land therefore applied to one use should not be taken for the other except in cases on necessity. . . . There is no difficulty in effecting the desired improvement by taking land on the other side of the street. . . . The idea of running a public street, regardless of graves, monuments, and the feelings of the living, through one of our public cemeteries, would be shocking to the moral sense of the community, and would not be tolerated except upon the direst necessity." It was then held that land already devoted to a public use cannot be taken by the public for another use which is inconsistent with the first, without special authority from the Legislature, or authority granted by necessary and reasonable implication.

The second decision is that of Memphis State Line Railroad Company vs. Forest Hill Cemetery Co. ([1906], 116 Tenn., 400.) Here the purpose of the proceedings was to condemn a right of way for the railway company through the Forest Hill Cemetery. The railroad proposed to run through the southeast corner of the cemetery where no bodies were interred. The cemetery had been in use for about eight years, and during this period thirteen hundred bodies had been buried therein. The cemetery was under the control of a corporation which, by its character, held itself out as being willing to sell lots to any one who applies therefor and pays the price demanded, except to members of the Negro race. 1awph!l.net

It was found that there were two other routes along which the railroad might be located without touching the cemetery, while the present line might be pursued without interfering with Forest Hill Cemetery by making a curve around it. In the court below the railroad was granted the right of condemnation through the cemetery and damages were assessed. On appeal, the certiorari applied for was granted, and the supersedeas awarded. The court, in effect, found that the land of the Cemetery Company was devoted to a public purpose, and that under the general language of the Tennessee statute of eminent domain it could not be taken for another public purpose. The court said that in process of time the sepulchres of the dead "are made the seats of cities, and are traversed by streets, and daily trodden by the feet of man. This is inevitable in the course of ages. But while these places are yet within the memory and under the active care of the living, while they are still devoted to pious uses, they are sacred, and we cannot suppose that the legislature intended that they should be violated, in the absence of special provisions upon the subject authorizing such invasion, and indicating a method for the disinterment, removal, and reinterment of the bodies buried, and directing how the expense thereof shall be borne." Two members of the court, delivering a separate concurring opinion, concluded with this significant and eloquent sentence: "The wheels of commerce must stop at the grave."

For the foregoing reasons, and for others which are stated in the principal decision, I am of the opinion that the judgment of the lower court should be affirmed.

STREET, J., dissenting:

It may be admitted that, upon the evidence before us, the projected condemnation of the Chinese Cemetery is unnecessary and perhaps ill-considered. Nevertheless I concur with Justice Moir in the view that the authorities of the city of Manila are the proper judges of the propriety of the condemnation and that this Court should have nothing to do with the question of the necessity of the taking.

MOIR, J., dissenting:

I dissent from the majority opinion in this case, which has not yet been written, and because of the importance of the question involved, present my dissent for the record.

This is an action by the city of Manila for the expropriation of land for an extension of Rizal Avenue north. The petition for condemnation was opposed by the "Comunidad de Chinos de Manila" and Ildefonso Tambunting and various other who obtained permission of the trial court to intervene in the case.

All of the defendants allege in their opposition that the proposed extension of Rizal Avenue cuts through a part of the Chinese Cemetery, North of Manila, and necessitates the destruction of many monuments and the removal of many graves.

The Court of First Instance of Manila, Honorable S. del Rosario, judge after hearing the parties, decided that there was no need for constructing the street as and where proposed by the city, and dismissed the petition.

The plaintiff appealed and sets up the following errors:

1. The court erred in deciding that the determination of the necessity and convenience of the expropriation of the lands of the defendants lies with the court and not with the Municipal Board of the city of Manila.

2. The court erred in permitting the presentation of proofs over the objection and exception of the plaintiff tending to demonstrate the lack of necessity of the projected street and the need of the lands in question.

3. The court erred in declaring that the plaintiff had no right to expropriate the lands in question.

4. The court erred in dismissing the complaint.

The right of the plaintiff to expropriate property for public use cannot be denied. The "right of eminent domain is inherent in all sovereignties and therefore would exist without any constitutional recognition . . . . The right of eminent domain antedates constitutions . . . . The right can only be denied or restricted by fundamental law and is right inherent in society." (15 Cyc., pp. 557-8.) .

This general right was recognized in the Philippine Code of Civil Procedure effective October 1st, 1901, which prescribed the manner of exercising the right. (Sections 241 et seq.)

It was further recognized in the Organic Act of July 1st, 1902, which provides in section 74 "that the Government of the Philippine Islands may grant franchises . . . including the authority to exercise the right of eminent domain for the construction and operation of works of public utility and service, and may authorize said works to be constructed and maintained over and across the public property of the United States including . . . reservations." This provisions is repeated in the Jones Law of August, 1916.

The legislature of the Islands conferred the right on the city of Manila. (Section 2429, Administrative Code of 1917; section 2402, Administrative Code of 1916.)

Clearly having the right of expropriation, the city of Manila selected the line of its street and asked the court by proper order to place the plaintiff in possession of the land described in the complaint, and to appoint Commissioners to inspect the property, appraise the value, and assess the damages. Instead of doing so, the court entered upon the question of the right of the city to take the property and the necessity for the taking.

The court says:

The controversy relates to whether or not the Chinese Cemetery, where a great majority of this race is buried and other persons belonging to other nationalities have been formerly inhumed, is private or public; whether or not said cemetery, in case it is public, would be susceptible to expropriation for the purpose of public improvements proposed by the city of Manila; whether or not the latter is justified of the necessity and expediency of similar expropriation before its right to the same would be upheld by the courts of justice; and

whether or not the appreciation of said necessity pertains to the legislative or the judicial department before which the expropriation proceedings have been brought.

Relative to the first point, it is not necessary for the court to pass upon its consideration, in view of the conclusion it has arrived at the appreciation of the other points connected with each other.

From the testimony of two reputable engineers produced by some of the defendants, it appears that the land chosen by the plaintiff for the extension of Rizal Avenue to the municipality of Caloocan is not the best or the less expensive, although upon it there may be constructed a straight road, without curves or winding; but that in order to construct said road upon said land, the city of Manila would have to remove and transfer to other places about four hundred graves and monuments, make some grubbings, undergo some leveling and build some bridges — the works thereon, together with the construction of the road and the value of the lands expropriated, would mean an expenditure which will not be less than P180,000.

Beside that considerable amount, the road would have a declivity of 3 per cent which, in order to cover a distance of one kilometer, would require an energy equivalent to that which would be expanded in covering a distance of two and one-half kilometers upon a level road.

On the other hand, if the road would be constructed with the deviation proposed by Ildefonso Tambunting, one of the defendants, who even offered to donate gratuitously to the city of Manila part of the land upon which said road will have to be constructed, the plaintiff entity would be able to save more than hundreds of thousand of pesos, which can be invested in other improvements of greater pressure and necessity for the benefit of the taxpayers; and it will not have to employ more time and incur greater expenditures in the removal and transfer of the remains buried in the land of the Chinese Community and of Sr. Tambunting, although with the insignificant disadvantage that the road would be little longer by a still more insignificant extension of 426 meters and 55 centimeters less than one-half kilometer, according to the plan included in the records; but it would offer a better panorama to those who would use it, and who would not have to traverse in their necessary or pleasure-making trips or walks any cemetery which, on account of its nature, always deserves the respect of the travellers. It should be observed that the proposed straight road over the cemetery, which the city of Manila is proposing to expropriate, does not lead to any commercial, industrial, or agricultural center, and if with said road it is endeavored to benefit some community or created interest, the same object may be obtained by the proposed deviation of the road by the defendants. The road traced by the plaintiffs has the disadvantage that the lands on both sides thereof would not serve for residential purposes, for the reason that no one has the pleasure to construct buildings upon cemeteries, unless it be in very overcrowded cities, so exhausted of land that every inch thereof represents a dwelling house.

And it is against the ruling, that it lies with the court to determine the necessity of the proposed street and not with the municipal board, that the appellant directs its first assignment of error.

It is a right of the city government to determine whether or not it will construct streets and where, and the court's sole duty was to see that the value of the property was paid the owners after proper legal proceedings ascertaining the value.

The law gives the city the right to take private property for public use. It is assumed it is unnecessary to argue that a public road is a public use.

But it is argued that plaintiff must show that it is necessary to take this land for a public improvement. The law does not so read, and it is believed that the great weight of authority, including the United States Supreme Court, is against the contention.

The question of necessity is distinct from the question of public use, and former question is exclusively for the legislature, except that if the constitution or statute authorizes the taking of property only in cases of necessity, then the necessity becomes a judicial question. (McQuillen Municipal Corporations, Vol. IV, pp. 3090-3091.)

In the absence of some constitutional or statutory provision to the contrary, the necessity and expediency of exercising the right of eminent domain are questions essentially political and not judicial in their character. The determination of those questions belongs to the sovereign power; the legislative determination is final and conclusive, and the courts have no power to review it. It rests with the legislature not only to determine when the power of eminent domain may be exercised, but also the character, quality, method, and extent of such exercise. And this power is unqualified, other than by the necessity of providing that compensation shall be made. Nevertheless, under the express provisions of the constitution of some states the question of necessity is made a judicial one, to be determined by the courts and not by the legislature.

While the legislature may itself exercise the right of determining the necessity for the exercise of the power of eminent domain, it may, unless prohibited by the constitution, delegate this power to public officers or to private corporations established to carry on enterprises in which the public are interested, and their determination that a necessity for the exercise of the power exists is conclusive. There is no restraint upon the power except that requiring compensation to be made. And when the power has been so delegated it is a subject of legislative discretion to determine what prudential regulations shall be established to secure a discreet and judicious exercise of the authority. It has been held that in the absence of any statutory provision submitting the matter to a court or jury the decision of the question of necessity lies with the body of individuals to whom the state has delegated the authority to take, and the legislature may be express provision confer this power on a corporation to whom the power of eminent domain is delegated unless prohibited by the constitution. It is of course competent for the legislature to declare that the question shall be a judicial one, in which case the court and not the corporation determines the question of necessity. (15 Cyc., pp. 629-632.)

To the same effect is Lewis on Eminen Domain (3d Edition, section 597).

I quote from the notes to Vol. 5, Encyclopedia of United States Supreme Court Reports, p. 762, as follows:

Neither can it be said that there is any fundamental right secured by the constitution of the United States to have the questions of compensation and necessity both passed upon by one and the same jury. In many states the question of necessity is never submitted to the jury which passes upon the question of compensation. It is either settled affirmatively by the legislature, or left to the judgment of the corporation invested with the right to take property by condemnation. The question of necessity is not one of a judicial character, but rather one for determination by the lawmaking branch of the government. (Boom Co. vs.Patterson, 98 U.S., 403, 406 [25 L. ed., 206]; United States vs. Jones, 109 U.S., 513 [27 L. ed., 1015]; Backus vs. Fort Street Union Depot Co., 169 U.S., 557, 568 [42 L. ed., 853].)

Speaking generally, it is for the state primarily and exclusively, to declare for what local public purposes private property, within its limits may be taken upon compensation to the owner, as well as to prescribe a mode in which it may be condemned and taken. (Madisonville Tract. Co. vs. St. Bernard Min. Co., 196 U.S., 239, 252 [49 L. ed., 462].)

Courts have no power to control the legislative authority in the exercise of their right to determine when it is necessary or expedient to condemn a specific piece of property for public purposes. (Adirondack R. Co. vs.New York States, 176 U.S., 335 [44 L. ed., 492].)

10 R. C. L. (p. 183), states the law as follows:

158. Necessity for taking ordinarily not judicial question. — The legislature, in providing for the exercise the power of eminent domain, may directly determine the necessity for appropriating private property for a particular improvement or public use, and it may select the exact location of the improvement. In such a case, it is well settled that the utility of the proposed improvement, the extent of the public necessity for its construction, the expediency of constructing it, the suitableness of the location selected and the consequent necessity of taking the land selected for its site, are all questions exclusively for the legislature to determine, and the courts have no power to interfere, or to substitute their own views for these of the representatives of the people. Similarly, when the legislature has delegated the power of eminent domain to municipal or public service corporation or other tribunals or bodies, and has given them discretion as to when the power is to be called into exercise and to what extent, the court will not inquire into the necessity or propriety of the taking.

The United States Supreme Court recently said:

The uses to which this land are to be put are undeniably public uses. When that is the case the propriety or expediency of the appropriation cannot be called in question by any other authority. (Cinnati vs. S. & N. R. R. Co., 223 U.S., 390, quoting U.S. vs. Jones, 109, U.S., 519.)

And in Sears vs. City of Akron (246 U.S., 242), decided March 4th, 1918, it said:

Plaintiff contends that the ordinance is void because the general statute which authorized the appropriation violates both Article 1, paragraph 10, of the Federal Constitution, and the Fourteenth Amendment, in that it authorizes the municipality to determine the necessity for the taking of private property without the owners having an opportunity to be hear as to such necessity; that in fact no necessity existed for any taking which would interfere with the company's project; since the city might have taken water from the Little Cuyahoga or the Tuscarawas rivers; and furthermore, that it has taken ten times as much water as it can legitimately use. It is well settled that while the question whether the purpose of a taking is a public one is judicial (Hairstonvs. Danville & W. R. Co., 208 U.S. 598 [52 L. ed., 637; 28 Sup. Ct. Rep., 331; 13 Ann. Cas., 1008]), thenecessity and the proper extent of a taking is a legislative question. (Shoemaker vs. United States, 147 U.S., 282, 298 [57 L. ed., 170, 184; 13 Supt. Ct. Rep., 361]; United States vs. Gettysburg Electric R. Co., 160 U.S. 668, 685 [40 L. ed., 576, 582; 16 Sup. Ct. Rep., 427]; United States vs. Chandler-Dunbar Water Power Co., 229 U.S., 53, 65 [57 L. ed., 1063, 1076; 33 Sup. Ct. Rep., 667].)

I think the case should be decided in accordance with foregoing citations, but one other point has been argued so extensively that it ought to be considered.

It is contended for the defense that this Chinese Cemetery is a public cemetery and that it cannot therefore be taken for public use. In its answer the "Comunidad de Chinos de Manila" says it is "a corporation organized and existing under and by virtue of the laws of the Philippine Islands," and that it owns the land which plaintiff seeks to acquire. The facts that it is private corporation owning land would seem of necessity to make the land it owns private land. The fact that it belongs to the Chinese community deprives it of any public character.

But admitting that it is a public cemetery, although limited in its use to the Chinese Community of the city of Manila, can it not be taken for public use? Must we let the reverence we feel for the dead and the sanctity of their final resting-place obstruct the progress of the living? It will be instructive to inquire what other jurisdictions have held on that point.

On the Application of Board of Street Openings of New York City to acquire St. Johns Cemetery (133 N.Y., 329) the court of appeal said:

. . . The board instituted this proceeding under the act to acquire for park purposes the title to land below One Hundred and Fifty-fifth street known as St. John's cemetery which belonged to a religious corporation in the city of New York, commonly called Trinity Church. It was established as a cemetery as early as 1801, and used for that purpose until 1839, during which time about ten thousand human bodies had been buried therein. In 1839 an ordinance was passed by the city of New York forbidding interments south of Eighty-sixth street, and since that time no interments have been made in the cemetery, but Trinity Church has preserved and kept it in order and prevented any disturbance thereof.

It is contended on behalf of Trinity Church that under the general authority given by statute of 1887, this land which had been devoted to cemetery purposes could not be taken for a park. The authority conferred upon the board by the act is broad and general. It is authorized to take for park purposes any land south of One Hundred and Fifty-fifth street. . . . .

The fact that lands have previously been devoted to cemetery purposes does not place them beyond the reach of the power of eminent domain. That is an absolute transcendent power belonging to the sovereign which can be exercised for the public welfare whenever the sovereign authority shall determine that a necessity for its exercise exists. By its existence the homes and the dwellings of the living, and the resting-places of the dead may be alike condemned.

It seems always to have been recognized in the laws of this state, that under the general laws streets and highways could be laid out through cemeteries, in the absence of special limitation or prohibition. . . .

In Re Opening of Twenty-second Street (102 Penn. State Reports, 108) the Supreme Court of the State said:

This was an action for the opening of a street through a cemetery in the City of Philadelphia. It was contended for the United American Mechanics and United Daughters of America Cemetery Association that by an act of the legislature of the State approved March 20th, 1849, they were forever exempt from the taking of any their property for streets, roads or alleys and this Act was formally accepted by the Cemetery Company on April 9th, 1849, and there was, therefore, a contract between the Cemetery Company and the State of Pennsylvania, which would be violated by the taking of any part of their property for street purposes. It was further contended that there were 11,000 persons buried in the cemetery.

The court held that property and contracts of all kinds must yield to the demand of the sovereign and that under the power of eminent domain all properties could be taken, and that if there was a contract between the State of Pennsylvania and the Cemetery Association, the contract itself could be taken for public use, and ordered the opening of the street through the cemetery.

In Vol. 5, Encyclopedia of United States Supreme Court Reports (p. 759), it is said:

Although it has been held, that where a state has delegated the power of eminent domain to a person or corporation and where by its exercise lands have been subject to a public use, they cannot be applied to another public use without specific authority expressed or implied to that effect, yet, the general rule seems to be that the fact that property is already devoted to a public use, does not exempt it from being appropriated under the right of eminent domain but it may be so taken for a use which is clearly superior or paramount to the one to which it is already devoted. (Citing many United States Supreme Court decisions.)

A few cases have been cited where the courts refused to allow the opening of streets through cemeteries, but in my opinion they are not as well considered as the cases and authorities relied upon herein.

The holding of this court in this case reverses well settled principles of law of long standing and almost universal acceptance.

The other assignments of error need not be considered as they are involved in the foregoing.

The decision should be reversed and the record returned to the Court of First Instance with instructions to proceed with the case in accordance with this decision.

G.R. No. L-24740, Republic v. Juan and Tanseco Juan, 92 SCRA 26

Republic of the PhilippinesSUPREME COURT

ManilaEN BANC

DECISION

July 30, 1979

G.R. No. L-24740REPUBLIC OF THE PHILIPPINES, plaintiff-appellee,vs.CELESTINO C. JUAN and ANA TANSECO JUAN, defendants-appellants.Celestino C. Juan &, Associates for appellants. Solicitor General's Office for the appellee.Makasiar, J.:Appeal by defendants-appellants from the decision dated September 28, 1964 of the Court of First Instance of La Union in Civil Case No. 1835 for the expropriation of 338.7480 hectares of land owned by spouses Celestino C. Juan and Ana Tanseco as the site for the La Union Regional Agricultural School, directing the plaintiff Republic of the Philippines to

... pay the legal owners Celestino C. Juan and Ana Tanseco the amount of P190,000.00 which is the just and reasonable compensation that the Court rules in this case in favor of the defendants; and it appearing that on May 7, 1963, P100,000.00 had already been paid, it is therefore ordered that upon this decision becoming final the balance of P90,000.00 plus interest of 6% from May 4, 1963 shall be paid to defendants Celestino C. Juan and Ana Tanseco," aside from the costs of the suit.

Defendants-appellants are the registered owners of two (2) adjoining parcels of land located at Barrio Sapilang, Bacnotan, La Union with an aggregate area of 3,387,480 square meters or 338.7480 hectares, more or less, and covered by Original Certificate of Title No. 0-420 issued on April 14, 1959 (pp, 9-14, 46-47, ROA; Vol. 1, rec.).

Pursuant to the authorization issued on March 15, 1963 by the President of the Philippines through the Executive Secretary (p 15, ROA), the Solicitor General filed on April 8, 1963 the complaint for expropriation of the aforesaid parcels of land to be used as the site of the La Union Agricultural School, which was to be established by authority of Republic Act 2692 (pp. 9-20, 43 ROA, Vol. I, rec.).Before the institution of the expropriation proceedings Victor Luis, who was appointed principal of the proposed school, recommended the property of defendants as the school site. Thereafter, together with Mrs. Avelina L. Osias, he negotiated with the defendants for the purchase of their property (pp. 85-87, ROA, Vol. 1, rec.). On January 25, 1963, he wrote a letter to defendant Celestino Juan, thus:

... Feelers have come to you to inquire about the price that you would be willing to sell your land. Mrs, Pacita Gonzales and the undersigned came to you personally and you informed us verbally your least price of P170,000.00 which you explained to us is very reasonable.

May I request your kindness to confirm the above price in writing, as your offer as the selling price of your above-mentioned land in order that there will be an official record or basis in negotiating with authorities concerned in the purchase of your land as school site. (pp. 43-44, ROA, Vol. I, rec.).

Defendant Celestino Juan replied on January 28, 1963.

... that the selling price of my land is P170,000.00 net to me exclusive of the amount of my obligation to the China Banking Corporation where the property is mortgaged.

The condition of the sale is at least P90,000.00 down and the balance within a period of one (1) year. Title to the property will be

transferred to you immediately provided that an annotation of the remaining balance of the price be accordingly made in the new title.

I wish, however, to tell you that presently there are no less than 23 tenants in the land and they are harvesting or about to harvest their tobacco crops. In justice to them, they should be allowed to finish harvesting their crops before they are finally ejected.

It is with deep regret that I cannot part with the land at a lesser price. There are 3 parties at least aside from you who are interested to buy the land. One of them is ready to sign the contract for a price of P200,000.00 payable in cash or at least a period of ten (10) days. This party, through an understanding with a certain bank can mortgage the property for P350,000.00. As you see, if the primary consideration is money alone, then, if I am a smart, I should mortgage the land myself. It should be noted, and I have all the records with me, that I have applied for a loan with the Development Bank of the Philippines in the amount of P4,102,000.00 principally to establish a dairy farm and mortgaging only as collateral the said land. From the conversation with said bank, it seems to me that the same would be favorably considered if not for P4,000,000.00 at least P1,000,000.00.

Kindly confirm your acceptance of the terms of this letter as I can hold the land for a period of ten (10) days. (pp. 382-384, ROA).

After receipt of the aforequoted letter, Mr. Luis consulted his office in Manila (p. 86, ROA, Vol. I, rec.) as well as the provincial officials of La Union and the municipal officials of Bacnotan (pp. 86,174, ROA, Vol. I, rec.).

In an order dated April 15, 1963, the trial court authorized the Government to enter and take immediate possession of the property

after depositing the amount of P90,793.70 with the provincial treasurer of La Union as provisional value (p. 20, ROA, Vol. I, rec.),

Defendants on April 24, 1963 filed their "Urgent Motion for Reconsideration and/or to Lift Writ of Possession" questioning among others, the propriety and correctness of Resolution No. 13, series of 1962, of the Provincial Appraisal Committee and pointing out that "the fair and reasonable market value ... should be at least fifty centavos (P0.50) per square meter of P5,000.00 per hectare" and prayed that the complaint for expropriation be dismissed for lack of jurisdiction; to set aside the order dated April 15, 1963 and instead order plaintiff to deposit the amount of P300,000.00 as provisional value; and to set aside the writ of possession dated April 16, 1963 until the court has decided the issue of jurisdiction and/or until plaintiff has deposited the amount of P300,000.00 as provisional value of the property (pp. 22-32, ROA, Vol. I, rec.). On the same date, the lower court lifted the writ of possession until further orders.

Acting on the aforesaid motion on April 26, 1963, the lower court found the expropriation proceedings in order and the provisional value made by the Provincial Appraisal Committee inadequate and ordered the plaintiff Republic of the Philippines to deposit the amount of P100,000.00 as provisional value until the true valuation of the lots can be determined in accordance with law and further directed "that for the best interest of the defendants whose improvements may be vandalized for lack of protection, let the writ be effected without prejudice to the final determination of the true value of the property to be determined in due course" and forthwith ordered the issuance of the writ of possession after the deposit by plaintiff of the amount of P100,000.00 is made (p. 45, ROA, Vol. I, rec.).

On May 4, 1963, plaintiff Republic of the Philippines took possession and occupied the lots under expropriation (p. 86, ROA, Vol. I, rec.) and deposited on May 7, 1963 the amount of P100,000.00 which the appellants withdrew that same day.

On May 7, 1963, defendants filed two simultaneous pleadings: motion for reconsideration of the provisional value on the ground that the value fixed by the court is still inadequate; and a motion to dismiss which likewise embodied defendants' answer to the complaint for expropriation (pp. 46-66, ROA, Vol. I, rec.).

In an order dated June 13, 1963, the court denied the motion to dismiss of defendants for lack of merit (p. 66, ROA, Vol. I, rec.).

In order dated January 8, 1964, the trial court directed the condemnation of the property,

it appearing that the plaintiff has already deposited the amount of P100,000.00 the provisional value of the property sought to be condemned, which amount has already been withdrawn by the defendants and the property accordingly turned over to the Republic of the Philippines for the use of the La Union Agricultural School, ..." (pp. 66-67, ROA, emphasis supplied).

and appointed as commissioners of appraisal (1) Atty. Rogelio Balagot, for the lower court and as chairman; (2) Atty. Eufemio Molina, for the plaintiff; and (3) Atty. Pablito M. Rojas, for the defendants (pp. 4, 67-68, ROA, Vol. I, rec.).

For a period of three days, these commissioners in the presence of the parties, conducted an extensive ocular inspection and physical investigation of the property, after which they held protracted hearings until June 2, 1964, wherein both parties were given full

opportunity to present their respective positions with voluminous documentary and oral evidence (p. 4, ROA, Vol. I, rec.).

On June 29, 1964, Atty. Eufemio Molina, commissioner for plaintiff, filed his report dated June 25, 1964 (pp. 69-78, ROA, Vol. I, rec.) recommending

... that the value of the land of defendants to be taken as the site of the La Union Agricultural School at Sapilang, Bacnotan, La Union, be fixed at P135,000.00. which amount is the meeting point between the government's offer of P100,000.00 and the defendants' price of P170,000.00.

Atty. Pablito M. Rojas, commissioner for the defendants, in his report of July 13, 1964, recommended

... as the price of the land to be paid by the plaintiff to the defendants the amount of P1,407,856.00 the same to bear interest at the legal rate from the date of possession by the plaintiff to the date the amount is actually paid.

Commissioner Rogelio F. Balagot for the court and chairman recommended:

... that the just compensation to be paid the defendants landowners be the following:

Value of the Land......................................................................... P1,044,163.70

Value of Improvements.................................................................. 1,712.60

Total Amount................................................................ P1,045,876.30

That the balance of P945,876.30 (deducting P100,000.00, the amount paid as provisional value) earn legal interest (6%) until fully paid.

Defendants-appellants filed their objection to the reports of Commissioners Rojas, Balagot and Molina, claiming that the true value of the land is P1,736,208.32 or P1,693,740.00 (pp. 284, 374, ROA, Vol. 1. rec.).

On September 4, 1964, defendants filed a petition entitled "Petition to Submit Case for Decision" without any hearing on the reports (p. 378, ROA, Vol, I, rec.)

On September 28, 1964, the lower court rendered its decision (pp. 380- 426, ROA, Vol. I, rec.).

A motion for reconsideration was filed by defendants on October 26, 1964 (pp. 426-508, ROA. Vol. I, rec.), but the same was denied by the Court in an order dated May 10, 1965 (pp. 509-514, ROA. Vol. I, rec.).

I

Under their first assignment of error, appellants contend that the propriety of the expropriation and the manner in which it was conducted were in dispute throughout the proceedings in the trial court and that they never waived their objections thereto; that the conditions precedent as provided for by Executive Order No. 132, series of 1937, as amended, were not complied with, for no proper and valid negotiation to purchase the lots or to have it donated to the Government was undertaken by the State before the institution

of the expropriation case in court; and that the resolution of the Appraisal Committee which was the basis of the amount alleged in the complaint as the fair market value of the lots to be expropriated was null and void, having been adopted contrary to legal requirements (pp. 24-46, Appellants' Brief: p. 11. Vol. II. rec.). The same points were raised by the appellants in their motion for reconsideration of the lower court's main decision and the trial court in its order of May 10, 1965 correctly overruled them, stating that:

Movants start by bringing to the front the alleged lack of negotiations between plaintiff and defendants for the acquisition of the 338 hectares belonging to the latter. Non-compliance with Executive Order No. 132 is mentioned repeatedly by the defendants as vitiating this case. It is even hinted that the best resolution for this case would be to dismiss it because plaintiff failed to comply with said Executive Order dictated in pre-war days. Plaintiff delivered to defendants through this Court P100,000.00 as part of the fair and just compensation that the defendants are entitled. On May 7, 1963, such amount was received by defendants and plaintiff started developing the area and constructing the buildings needed for the La Union Agricultural School. This school is now in operation; and it would certainly be the most disturbing step for the regularity of the functions of the Government to dismiss the case, compelling the plaintiff to remove all buildings in the land that once belonged to the defendants and return the property to them. Besides, interpreting with fair liberality the pre-war Executive Order No. 132, the court shall now state that for the purpose of negotiations with the land owners the letter of January 5, 1963 received by the defendants and the latter's reply of January 28, 1963 are clear and sufficient compliance with the tenor and spirit of said Executive Order. The court, therefore, rejects any request that this case having been filed without sufficient compliance with said

administrative procedures the whole proceeding shall have to be dismissed. This cannot be done." (pp. 511-512, ROA, Vol. I, rec.).

To begin with, it must be emphasized that plaintiff-appellee in this instant case is the Republic of the Philippines which is exercising its right of eminent domain inherent in it as a body sovereign. In the exercise of his sovereign right the state is not subject to any limitation other than those imposed by the Constitution which are: first, the taking must be for a public use; secondly, the payment of just compensation must be made; and thirdly, due process must be observed in the taking. Beyond these conditions, the exercise by the State of its right of eminent domain is subject to no restraint. Section 64(h) of the Revised Administrative Code confers upon the Chief Executive the power to determine when it is necessary or advantageous to exercise the power of eminent domain in behalf of the Republic of the Philippines and to direct the Solicitor General to cause the filing of the appropriate condemnation proceedings in court. By this grant, the executive authorities may then decide whether the power will be invoked and to what extent (see pp. 87-89, Political Law of the Philippines, Ta?;ada and Carreon, 1962 ed., citing Visayan Refining Co. v. Camus, 40 Phil. 550).Appellants in making their first assignment of error are under the wrong impression that the provisions of Executive Order No. 132 are conditions precedent to the valid exercise of the State of its right of eminent domain. As a whole, Executive Order No. 132 is purely an administrative procedure confined within the executive department of the government designed merely to govern and regulate the taking of private properties for public use which may either be by voluntary sale or by donation in favor of the government. Nothing is provided in said executive order expressly or impliedly making the procedures therein enumerated as conditions precedent to the valid exercise by the government of the right of eminent domain by filing the proper action in court. As stated, Executive Order No. 132 was

intended merely to govern the taking of private property short of judicial action either by purchase or donation. Being so, the same cannot limit or circumscribe the sovereign and inherent right of the State to expropriate private property through the Courts.

Moreover, there has been substantial compliance with the requirements of Executive Order No. 132; because negotiations for the purchase of the parcels were conducted between Victor Luis, the principal of the proposed agricultural school, and Mrs. Avelina L. Osias on one hand, and the defendants-appellants on the other, which did not result in a voluntary sale by the defendants-appellants for lack of agreement on the just compensation for the parcels.

Paragraph (a) of Executive Order No. 132 provides that negotiations shall be conducted by the "Director of Public works, city or district engineer, or other officials concerned ... The last term can comprehend the principal of the proposed agricultural institution.

Furthermore, the unqualified withdrawal by appellant of the amount of P100,000.00 deposited in court by the plaintiff as provisional value of the lots subject of expropriation, constituted recognition on their part of the right of the government to expropriate the lots, (Republic v. Pasicolan, May 31, 1961, 2 SCRA 626).If the unconditional withdrawal of the amount deposited as provisional value precludes the defendants-appellants from questioning the right of the plaintiff to expropriate, it must necessarily follow that said withdrawal also estops defendants-appellants from raising any objection to the manner and propriety of the exercise by the plaintiff of the right of expropriation (18 American Jurisprudence 634-635, Francisco's The Revised Rules of Court in the Philippines, Vol. IV-B, pp. 411-412).

There can be no debate that due process was observed in the instant case. Likewise, education is public use or public purpose. Republic Act No. 2692 expressly authorizes the establishment of the La Union Regional Agricultural School within the Province of La Union and the acquisition of a suitable site therefor. The inadvertent omission of the term Regional in the complaint for expropriation could not nullify the expropriation of the lands of defendants-appellants. Such error in the complaint does not amend the law and can easily be corrected without affecting the validity of the proceedings.II

The valuation of the lots must be fair and just, not only to the owner but also to the taxpayers who are to pay for it. Appellants are entitled to receive only the value of what they have been deprived of, and no more; because to award them less, would be unjust to them, and to award them more, would be unjust to the public (27 Am. Jur., 2nd s 266, footnote 17 pp. 52- 53).

The three commissioners appointed by the trial court to determine the fair market value of the lots did not reach a consensus as to the classification of the land, the allocation of areas as to each class, and the fair market value of each class of land.

Commissioner Rogelio F. Balagot found and recommended as follows:

1. Irrigated Riceland

70

P8,500.00

P595,000.00

2. Upland Rice

66

3,500.00

231,000.00

3. Orchard Land

52.0785

1,200.00

50,494.20

4. Pasture Land

90.6695

1,000.00

90,669.50

5. Forestland

70

1,000.00

77,000.00

TOTAL

338.7480 has.

1,044,163.70

and, after adding to the above amount the sum of P1,712.00, representing improvements, finally recommended the amount of P1,045,876.30 less P100,000.00 earlier withdrawn by appellants, to earn legal interest until fully paid (pp. 271-282, ROA, Vol. I, rec.) Commissioner Pablito M. Rojas appraised the land as follows:

Commissioner Pablito M. Rojas appraised the land as follows:

Land Classification

Total

Market

Total

Hectares

Value sq. meter

Market Value

Irrigated Palay Land

65.0000

P1.00

P650,000.00

Upland Palay

66.0000

0.30

198,000.00

Orchard

38.0785

25

98,200.00

Pasture Land

95.6695

10

92,669.50

Forestry Compound

8.0000

30

95,000.00

Forest Land

65.0000

15

97,500.00

Barrio Compound

4.0000

.50

20,000.00

TOTAL

338.7480

1,171,369.50

and after considering some factors, like the fact that the lots are titled, said commissioner finally recommended "the amount of P1,407,856.00, the same to bear interest at the legal rate from the date of possession by the plaintiff to the date the amount is actually paid" (pp. 160-166, ROA, Vol. I, rec.). Commissioner Eufemio Molina adopted the following classification and allocation:

(a) With respect to Lot No. 1 (Exh. "B"), into -

1. Unirrigated riceland with an area of 120,000 sq. meters. 2. Upland rice with an area of 85,000 sq. meters. 3. Pasture land with area of 2,801,695 sq. meters.

(b) With respect to Lot No. 2 (Exh. 'B-l') , into-

1. Unirrigated riceland with an area of 120,000 sq. meters, 2. Upland rice with an area of 85,000 sq. meters. 3. Pasture land with an area of 175,785 sq. meters.

and making a mass valuation of the entire two lots, recommended the amount of P135,000.00 by taking into consideration the amount

which to him is the price the government is willing to pay: P100,000.00 (actually the provisional value deposited by the government to take possession of the lots); P170,000.00 which according to him is the amount for which the defendants are willing to part with their lots (actually P190,000.00 including the bank mortgage liability of the land) and also the fact that the lots in question were acquired by tile defendants in 1957 for the amount of only P50,000.00 fro 'm Felipe Nebrija and his children (pp, 71- 78, ROA, Vol. 1, rec.). Before the filing of the complaint, a Provincial Appraisal Committee composed of Provincial Assessor Ramon Zandueta as chairman, and as members, Provincial Highway District Engineer( Oscar Data and Provincial Auditor Gabino Ferrer, was constituted. On November 16, 1962, this committee conducted an ocular inspection of the property, and on the same day, submitted its Resolution No. 13, Exhibit A, which classified defendant's property as follows:

60 hectares riceland at P800.00 per hectare .I................. P48,000.00 278.7480 hectares pasture land at P150.00 per hectare ...41,812.20

TOTAL................................................................ 189,812.20

(p. 135, ROA, Vol. I. rec.). The aforesaid resolution was rejected as having been done in haste (pp. 135-136, ROA, Vol. I, rec.). According to Provincial Assessor Zandueta, the amount of P89,812.20 is the assessed value of the property, which assessed value is the appraised value in expropriation cases (p. 141, ROA, Vol. I, rec.). La Union Agriculturist Pio A. Tadina was requested by Provincial Assessor Ramon Zandueta to appraise the property. Pursuant to said request, Mr. Tadina went to the property thrice and thereafter submitted his classification and valuation, as follows:

1. 40 hectares riceland

P60,000.00

P200,000.00

2. 20 hectares riceland

20,000.00

60,000.00

3. 80 hectares pasture land

40,000.00

80,000.00

4. 120 hectares fruit trees

60,000.00

120,000.00

5. 72 hectares 2nd growth forest

78,000.00

156,000.00

TOTAL

P258,000.00

P616,000.00

(p. 145, ROA, Vol. I, rec.). When the complaint was filed, the improvements on the property consisted of the following:

20 mango (bearing) P30 ea.

P800.00

21 coconut (bearing) P5 ea.

105.00

4 coconut (non-bearing) P2 ea.

8.00

4 caimito (star apple) P8 ea.

32.00

2 Chesa P5 ea.

10.00

4 Kasuy P2 ea.

8.00

12 bamboos (heavy) P0.30 ea.

3.60

1 bamboo (light) P0.10 ea.

0.10

1 breadfruit P5 ea.

5.00

1 jackfruit P4 ea.

4.00

1 guayabano P1 ea.

1.00

6 orange (non-bearing) P1 ea.

6.00

TOTAL

P982.70

(pp. 16-17, ROA, Vol. I, rec.). Mr. Luis Victor, principal of the La Union Regional Agricultural School, testified that there were around 30 fruit-bearing mango trees, once coconut fruit-bearing trees and banana plants (p. 139, ROA, Vol. I, rec.). Both Attys. Pablito M. Rojas and Rogelio Balagot, commissioners representing respectively the defendants-appellants and the trial court, agreed that the value of the improvements on the property was then P1,712.60 (pp. 163, 280-281, ROA, Vol. I, rec.).

... Starting from the town proper of Bacnotan, one can reach the property by passing through the barrios of Cabaroan, Sayoan, Salincob, Casiaman and finally Sapilang. The place is about 2.5 kilometers north of the Poblacion along the National Highway up to the so-called Cabaroan junction. From this junction is about a 2-

kilometer feeder road going eastward. And from this lateral road is an unsurfaced road of approximately 1.5 kilometers leading to the site of the Agricutural School. However, before the school took possession of the land on May 4, 1963, the place was not accessible at all by any motor vehicles, and that the only means was to hike over rice paddies, trails and creeks. Topographically, the property of defendant is situated on a high elevation. It consists of mountains and hills forming a semi-circle, and sloping on the sides towards an elongated portion or valley like depression which is level and developed into ridefields. Because of its high elevation or location, the climate of the place is healthful, temperate and especially invigorating when one is near or within the vicinity of the waterfall or spring. The climate is of the kind which the Weather Bureau would call the Type I climate; that is, the place has two distinct seasons, a dry season from December to June, when there are light rains or no rains at all and wet season, from June to December, when rains are abundant, heavy and frequent. The soil to the place is good. It has a luxurient vegetation. The property as per Original Certificate of Title No. 0-420 (Exh. '9-f') is divided into 2 lots; Lot No. 1 has an area of 3,006,695 square meters and covered by Tax Declaration No. 33043 (Exh. 'b'); and Lot No. 2 which is under Tax Declaration No. 33043 (Exh. 'B-l') has an area of 380,785 square meters, making a total land area of 338,7480 hectares, with an assessed value of P42,120.00. Aside from the waterfall or spring within the property, there are also fruit trees, scattered bamboo groves, banana trees in patches, forest area, upland and pasture land. The bamboo and banana lands, however, cannot properly be considered as such because the land upon which they grow is not planted principally for such growth. The improvements on the forestry area have been introduced by the government, notably the Reforestation Administration of the Department of Agriculture and Natural Resources. (Exh "D" and Exh. "I"). The other improvements

on the land have been itemized in the complaint filed before the Court. (pp. 69-71, ROA, Vol. I, rec.).

The foregoing findings do not appear to be disputed. Defendant-appellant Celestino Juan himself, stated in his letter of January 28, 1963 that his property is worth P190,000.00 (including his bank loan), which he later increased to P300,000.00 in his motion for reconsideration filed on April 24, 1963. It should be recalled that over three months earlier, appellant Celestino Juan, in his letter dated January 2, 1963 to the Provincial Appraisal Committee, evaluated his property at approximately P329,374.00, stating that he spent P15,000.00 for survey P5,000.00 for registration and P20,000.00 for bulldozing and levelling; that 60 hectares are first class which should be worth P3,000.00 per hectare; and that the remaining portion of 278.748 hectares should command at least P500.00 per hectare (pp. 35-37, ROA, Vol. I. rec.). The last evaluation in the amount of P300,000.00 judicially given by the defendants-appellants is a declaration and admission binding on them (Sec. 22, Rule 130, Revised Rules of Court), there being no showing that they were laboring under an error of fact. No compelling reason has been advanced to justify their being relieved from the binding effects of such admission. As We ruled in the Republic of the Philippines versus Narciso [99 Phil. 1031 (1956)], "the owners' valuation of the property may not be binding on the Government or the Court, but it should at least set a ceiling price for the compensation to be awarded. Moreover, the prices to be considered are those at the beginning of the expropriation, not the increased values brought about by the improvements and actuations of the Government after occupying the premises" (Re-affirmed in R.P. v. PNB, April 12,1961, 1 SCRA 957-963). When the defendants-appellants withdrew in 1963 the P100,000.00 deposited by the government, they already obtained a clear profit of P10,000.00 on their alleged investment of P90,000.00 consisting of

P50,000.00, the price they allegedly paid for the property in 1957, and P40,000.00 allegedly representing expenses for levelling, surveying and securing their Torrens title of the property from 1957 to 1959. The balance of P392,000.00 - consisting of P200,000.00 and interest of P192,000.00 at 6% annually for 16 years from May 4, 1963 to 1979 - is all profit, even during times of inflation. From 1957 until May 4, 1963, when the government took possession of the property, the defendants-appellants paid realty taxes on the basis of their tax assessment of only P42,120.00 (P89,812.20 according to Provincial Assessor Zandueta [p. 141, ROA, Vol. I, rec.]). Atty. Pablito M. Roxas and Atty. Rogelio Balago, appraisal commissioners respectively for appellants and the trial court, conceded that the value of the improvements was only P1,712.00 in 1963. To give them more than a million pesos - about P1,111,360.00 - on the basis of the appraisal of P616,000.00 by provincial agriculturist Pio Tadina, including interest for 16 years at 6% per annum, would be to mulct the tax-paying public, as the said amount is over ten times or over 1000% on their alleged original investment of P90,000.00 from 1957, to 1959. Precisely, in their reply dated January 28, 1963, their selling price was only P170,000.00 net to them, exclusive of their bank debt of P20,000.00. The appraisal of Provincial Agriculturist Pio Tadina, Chief Agricultural Appraiser Rafael T. David of the DBP, Commissioner Balagot and Commissioner Rojas, respectively, in the amount of P616,000.000, P1,006,400.00, P1,044,163.70, and P1,171,369.50, is patently extravagant, considering that the property was bough in 1957 (1956 as claimed by appellants [pp. 112, 126, Appellants' Brie])) for P50,000.00 only and the value of the improvements did not exceed P1,712.60 as of May 4, 1963, when the government took possession. It is doubtful that the property would increase in value over 6 times or over 10 times or by over 600% or over 1,000% in six years, from 1957 to 1963, with the expenses for surviving, securing the Torrens title over and bulldozing said property amounting to not more than P40,000.00,

already included in the computation (p. 36, ROA, Vol.. I, rec.). It should be emphasized that the property is about 6 kilometers from the poblaciosion of Bacnotan; that on May 4, 1963, when the government took possession of the same, it was not accessible at all by any motor vehicle and can only be reached by hiking through rice paddies, trails; and creeks; that it was not fully developed: and that it was then assessed at P42,120.00 (P89,812.20 according to Provincial Assessor Zandueta), although it has a waterfall or- spring, According to Commissioner Molina, the property has 24 hectares of Unirrigated rice land and 17 hectares dedicated to upland rice with the greater portion of 297.748 hectares as pasture land (pp, 71-72, ROA, Vol. I, rec.). Pio Tadina reported that 60 hectares are riceland, 80 hectares pasture land 120 hectares with fruit trees and 78 hectares second growth forest (p. 146, ROA, Vol. I. rec.). According to Rafael 'I. David,, who was requested by appellant Juan to make an appraisal (p. 145, ROA, Vol. I. rec.), 70 hectares are riceland, 66 hectares for upland rice, 38.0785 hectares for orchard, 90.6695 hectares pasture land, 5 hectares forestry compound, 65 hectares forest land and 4 hectares barrio compound (p. 150, ROA, Vol. I, rec.). Even under the classification of Commissioners Balagot and Rojas, as aforestated, about 50% of the property is not improved by man nor dedicated to agriculture, for about 95 hectares are pasture land and 70 hectares are forest land. The sales of farm lots in the vicinity of the property in question from April, 1959 to May 14, 1962 (pp. 74-75, 152-153, 156-157, ROA, Vol. I, rec.), do not provide an adequate basis for appraisal of the property of defendants-appellants; because such sales involved very small developed areas of less than a hectare each, which small lots usually command better prices within the reach f the ordinary buyer. The instant case involves the condemnation of over 338 hectares. III It is argued that appellants judicial admission of P300,000.00 as the provisional value of their lots, should not bind them, because said admission refers only to the provisional value of the said lots and not as an admission

of the actual - fair and just - value of the lots. The provisional value fixed by the Court pursuant to Section 2 of Rule 67 of the Rules of Court, is the provisional value that does not bind the land-owners. But when the landowner himself fixes the provisional value, he should abide thereby in obedience to the rule that admissions in pleadings bind the party making them. Section 2 of Rule 67, New Rules of Court reads:Entry of plaintiff upon depositing value with the National or Provincial Treasurer - Upon the filing of the complaint or at any time thereafter the plaintiff shall have the right to take or enter upon the possession of the real or personal property involved if he deposits with the National or Provincial Treasurer its value, as provisionality and promptly ascertained and fixed by the Court having jurisdiction of the proceedings, to be held by such treasurer subject to the orders and final disposition o)f the court...

Rule 69, Section 3 of the Old Rules of Court under which the present case was filed contained a similar provision. (See also Visayan Refining Co. v. Camus. 40 Phil. 550-556 [1919] and Manila Railroad Co. v. Paredes (31 Phil. 118-142 [1915]). For emphasis, We repeat that the price of P300,000.00 was the provisional value fixed not by the trial court, but by the defendants-appellants as owners in their motion for reconsideration filed on April 24, 1963. The provisional value fixed by the trial court in its order of April 15, 1963, was only P90,793.70, the reconsideration of which the owners sought from the trial court. In its order of April 26, 1963, the trial court fixed the provisional value of P100,000.00. The trial court, in its challenged decision of September 28, 1964, finally fixed the value at P190,000.00, which is still more than double the alleged capital investment of P90,000.00 allegedly paid by the owners for the purchase of the property, levelling and expenses for survey and titling of the property from 1957 to 1959. In his own letter of January 28, 1963, where he fixed his selling price at P170,000.00 net to him

(plus P20,000.00 bank mortgage on the property), defendant-appellant Celestino, Juan stated that the best offer he had for the property was only P200,000.00. While it may be true that the value provisionally fixed by the trial court "... does not necessarily represent the true and correct value of the land ..." it is equally true that the said amount provisionally fixed may yet turn out to be the true and correct value of the lots approximating the "just compensation" requirement of the Constitution. In fact, the same may also turn out to be more than the true and correct value of the property condemned by the government (see 27 AM JUR 2nd 111, footnote 16). Furthermore, it can be justifiably inferred that when appellants themselves proposed on April 24, 1963 the amount of P300,000.00 as the provisional value of their lots, they were referring actually to the highest value their lots could command at that time, notwithstanding their very speculative and extravagant claim in the same pleading (where they made the P300,000.00 proposal) that the "fair market value of (the) property should at least be fifty centavos . . per square meter or P5,000.00 per hectare. Consider the following circumstances:1. In his reply dated January 28,1963 to the letter of Mr. Victor Luis, appellant Juan stated that the selling price of his land was "P170,000.00 net to me exclusive of the amount of my obligation to the China Banking Corporation where the property is mortgaged", or P190,000.00 including the mortgaged debt of P20,000.00 (pp. 382-384, ROA). 2. Appellants-spouses acquired the lots in 1956 (as claimed by appellants) or 1957 (as stated in the decision of the trial court) from Felipe Nebrija and his children for only P50,000.00. 3. The lots in question were taxed on the basis of an assessment of only P42,120.00. 4. In his letter dated January 2, 1963 to the Provincial Appraisal Committee, appellant Celestino Juan evaluated his lots at approximately P319,374.00.

As a matter of fact, appellant should be bound by his P190,000.00 admission. In the light of the above-mentioned circumstances, the said amount of P190,000.00 is already just and reasonable. Appellants' claim that they were forced to make the P190,000.00 offer because they were then under a pressing need for money to defray expenses in connection with certain criminal case involving appellant Ana to settle said cases, can hardly invite belief; because (1) appellant Celestino Juan did not aver this alleged urgent need for money in his letter of January 28, 1963, and (2) notwithstanding appellant Juan's claim in that same letter of January 28, 1963 that an interested buyer of the said lots was "ready to sign the contract for a price of P200,000.00 payable in cash or at least a period of ten (10) days," appellant did not dispose of the same to said interested buyer, despite the lapse of ten days - during which he could have had the money - from the receipt by Victor Luis of said letter. Moreover, the same letter belies his alleged dire need for money to settle the alleged criminal cases against his wife for he stated therein that he had then a pending DBP loan application for P4,102,000.00 for a dairy farm, and that by reason of his connection with DBP officials, his application would be favorably considered for P1,000,000.00 with the expropriated property as collateral together with the dairy farm equipment, facilities and stock. Being a lawyer, appellant Celestino Juan knew that the reputation of his wife and for that matter his family would be better protected and preserved by her acquittal after trial than by settlement of the case (see pp. 107-108, Appellants' brief). Compromise of a criminal case, other than a private offense, does not remove the criminal liability and the concomitant stigma. Settlement of a criminal case, unlike acquittal, will not stop the people from talking about the guilt of the accused therein. Of course "judicial or non-judicial admissions made by condemnees as to the value of their properties that are to be expropriated should not be deemed conclusive if such admitted value be unjust, because the Constitution imperatively requires the

payment of 'just compensation'". But in the instant case, it could hardly be said that the amount of P300,000.00 is unjust to the appellants. The delay in the payment is compensated by the liability for 6% .interest per annum, covering sixteen (16) years - from 1963 to 1979 - on the balance of P200,000.00 (on May 7, 1963, appellants withdrew the P100,000.00 deposit) amounting to P192,000.00. The total balance due appellants would be P392,000.00. The total payment to them then would be P492,000.00. Beyond this price, the value would be excessive and unjust to the State and the taxpayer (27 Am. Jur. 2d 52-53 ?? 266, footnote 17). It must be pointed out that the most reliable pieces of evidence in the records relative to the just compensation to be paid herein appellants are those hereinbefore enumerated, namely, appellants' own evaluation in 1963, the acquisition cost the tax assessment. This is so because the Committee failed to arrive at an acceptable valuation, not to mention the fact that the individual reports of the commissioners of the Appraisal Committee did not undergo the indispensable requirement of hearing before the trial court. It must be herein stressed that almost all the evidence enumerated earlier are in the nature of admissions by the owner, which kind of evidence under existing jurisprudence occupies a preferred position in the realm of proof of just compensation and valuation in eminent domain. Even the purchase price of P50,000.00 paid in 1956 or 1957 by appellants for the lots sought to be condemned in 1963 is generally held admissible as evidence of the lots' fair market value, unless such purchase is too remote in point of time from the condemnation proceedings or more special consideration induced the sale at less than the true market value (29-A C.J.S. 1203-04). Similarly, the assessed valuation of land made by tax assessors when required by the law, and the owner's own valuation may be considered together with other proofs in the determination of the just value of the lots condemned (29-A C.J.S. 1201-1202). As aforestated, appellants paid realty taxes on the property on the basis of an assessed valuation of

only P42,120.00, with improvements worth only P1,712.00. On January 28, 1963, appellants' offer was P190,000.00, then P300,000.00 on April 24, 1963, as provisional value, after extravagantly claiming that the property is worth the fantabulous price of at least P5,000.00 per hectare or a total of P1,693,040.00. Not even the irrigated rice lands along the national highway in Nueva Ecija, the home province of appellants, could command that price to P5,000.00 per hectare in 1963. And the lands in the case at bar are in La Union, hilly, and away from the national highway without direct access to any feeder road. In our jurisdiction, the statement of the value of his property by the owner in the tax declaration shall, since 1940 under C.A. No. 530, constitute prima facie evidence of the real value of the property in expropriation proceedings by the Government and its instrumentalities. In short, it could therefore be said - taking into consideration the acquisition cost of P50,000.00 in 1956 or 1957 of the lots subject matter of the case, the alleged cost of P40,000.00 for levelling, surveying and titling thereof from 1957 to 1959, the assessed value as well as the tax declarations of the appellants with respect to these lots of only P42,120.00, the improvements worth P1,712.00 in 1963, and the several admissions or estimates made by the appellants with respect to the value of the lots ranging from P190,000.00 to P319.374.00 to P300,000.00 to P1,693,040.00 (P5,000.00 per hectare)-that the amount of P300,000.00 is just to appellants, not to mention that in addition to said amount a considerable interest of P192,000.00 for 16 years (1963-1979) would be paid on the unpaid balance of P200,000.00 from May 4, 1963 by the Government, or a grand total of P492.000.00, which is over five (5) times or over 500% their capital investment of P90,000.00 from 1956 to 1959. Anything beyond this amount is grossly excessive and patently unjust to the government and the taxpaying public (29 Am. Jur.2d 52-53 ?? 266, footnote 17). It cannot be seriously claimed by appellants that the declarations of value of the lots in Exhibits B and

B-1 were not made by them (pp. 346-347, ROA), considering that said tax declarations were made only after the title over the lots was obtained by appellants. Exhibits B and B-1 clearly indicate that appellants and no one else made the said declarations (p. 182, ROA). Likewise, the valuation of Agriculturist Tadina should not be accorded too much weight for the following reasons:1. His valuation report is based purely on his own estimate and opinion: hence in his letter to Atty. Ramon Zandueta which embodied his evaluation, he therein stated that "... You will note hereunder the technical analysis of the undersigned with regards to the area under consideration as a personal opinion ..." 2. The factors he considered in evaluating the lots in question could hardly justify this valuation in the amount of P616,000.00. Hence: "The 80 hectares of pasture land if properly grazed and managed is capable of maintaining no less than 400 heads of cattle. The 120 hectares of fruit trees is suitably adapted to cacao, coffee, bananas, mangoes. pineapple, citrus, avocado, rambutan, lanzones, The 78 second growth forest if only planted to "alnos Mirando" a Japanese kind of forest tree will also increase the volume of spring water for irrigation purposes ... The second growth forest land has been evaluated higher than the pasture and fruit tree lands because forest lands do not only conserve soil erosion and soil fertility but also provide organic matter for the irrigated riceland. It will also conserve and promote the development of spring besides the value of the, trees and other forest by-products which are now available as sources of income (pp.39-42,ROA). 3. Tadina is not "an experienced and competent appraiser" in the field of eminent domain or expropriation cases. When cross-examined by the Fiscal of the Province of La Union, he declared that the appraisal he made for the property in Damortis, La Union, and that in Aringay was only with respect to its adaptability and suitability for agriculture and not for purposes of determining the fair and reasonable value (tsn, pp. 505-506, pp. 201, 202, ROA; see also pp. 108-109. ROA). His

appointment as Chairman of the Appraisal Committee for public lands in La Union did not qualify him as an "experienced and competent appraiser" in expropriation cases; because lands involved therein are public lands and the appraisal or determination of the fair market value of said lots are not for purposes of expropriation cases (p. 202, ROA). Neither would his participation in the Poro Point expropriation add to his qualifications as an appraiser in expropriation cases, because he was merely therein consulted (p. 202. ROA). 4. His classifications were made by estimates and not by actual measurements (tsn, p. 514; p. 204, ROA).

That the land "had potential for conversion into subdivision" should not be considered in the valuation of the lots in question; because (1) the records of the case do not show conclusive evidence as to the subdivision potentiality of the lots; and (2) as held in Manila Electric Co. v. Tuason, "agricultural land should be appraised as such and not as potential building site" (60 Phil. 663 [1934], reiterated in the case of The Municipal Government of Sagay v. Jison, et al., 104 Phil. 1026, 1033[1958]). Republic vs. Castelvi lends no support to appellants' position; because in the Castelvi case, there was a finding by this Court that "... the lands in question had ceased to be devoted to the production of agricultural crops, that they had become adaptable for residential purposes, and that the appellees had actually taken steps to convert their lands into residential subdivisions even before the Republic filed the complaint for eminent domain (p. 355, 58 SCRA). As already noted above, the individual valuations made by the three commissioners are of little value, if at all; because the same were irregularly prepared, not to mention the fact that the same were not subjected to the indispensable hearing requirement before the trial court - wherein the commissioners could have been cross-examined on their respective reports, the bases thereof, how they reached their conclusions, and their qualifications, and related matters-vital to the

credibility, or lack of it, of their valuations. It is urged that, because the value of the peso at the time of the taking in 1963 by the government of the lots of appellants and the value of the peso today when the just compensation to be awarded to appellants is to be paid, are no longer the same, this factor should be considered in the determination of the final award to be given; and that even if WE consider appellants as having judicially admitted the amount of P300,000.00 as the price of their property, the doubling of this sum at this time is justified. Actually, under this proposition, the amount to be doubled shou1d only be the balance of P200,000.00, for appellants had ,withdrawn and made use of the P100,000.00 deposited by the government at the inception of this case. It is of course true that the value of the peso in 1963 and at present is no longer the same. But this does not justify US in considering that factor nor in doubling the amount judicially admitted by appellants; because such contingency is already well-taken care of by the interest to be awarded to appellants. For that is the true role or nature of interest in expropriation cases; because said interest is not contractual in nature nor based on delict or quasi-delict, but one that "runs as a matter of law and follows as a matter of course from the right of the landowner to be placed in as good a position as money can accomplish, as of the date of the taking" (30 CJS 230). Stated otherwise: "Where the payment of compensation does not accompany the taking of property for public use but is postponed to a later date, the owner of the property is ordinarily entitled to the award of an additional sum which will compensate for delay (cases cited) or which will, in other words, produce the full equivalent of the value of the property paid contemporaneously with the taking" (29-A CJS 762). Under this view, the interest awarded is deemed part of the just compensation required to be paid to the owner (27 Am. Jur, 112). This appears to be prevailing view in the United States. As aptly and clearly explained in one American case:

Article 1 ?? 18 of the Constitution of the State of Oregon, provides in part as follow: 'Private Property shall not be taken for public use ... without just cornpansation.' The Fifth Amendment to the Constitution of the United States contains substantially the same provision, 'nor shall private property be taken for public use, without just compensation.' In construing this Identical language of the Federal Constitution the Supreme Court of the United States holds as follows: lt is settled by the decision of this court that just compensation is the value of the property taken at the time of the taking (citing cases). And, if the taking precedes the payment of compensation, the owner is entitled to such addition to the value at the time of the taking as will produce the full equivalent of such value paid contemporaneously. Interest at a proper rate is a good measure of the amount to be added' (numerous cases cited omitted). In these cases and others, the proper rate of interest is held to be the legal rate of interest prevailing in the jurisdiction where the land is located. The Supreme Court of West Virginia holds on the authority of these decisions and also of Dohany vs. Rogers, 281, U.S. 362, 50 SGt. 299. 74 L.Ed 904, 68 ALR434, that denial of the right of interest would be a violation of the fourteenth Amendment to the Federal Constitution, Simons v. Dillon, 119 W. VA 284,193 S.E. 331, 113 A.L.R. 787. The following texts are authority for the allowance of such interest as part of the damages sustained by the owner of the land. Nichols on Eminent Domain 653, ?? 216 (3d ed.); Lewis, Eminent Domain (3d ed.) 1320, ?? 742; 18 AM JUR., Eminent Domain, ?? 272 [State vs. Deal, 233 P 2d 242, 251-252, emphasis supplied].

This view is also well-discussed by JAHR in his book, Eminent Domain - Valuation and Procedure (1953 ed.), Chapter XXVIII - Payment of Compensation, pp. 286-301; and by ORGEL in his book, Valuation Under Eminent Domain, Vol. I (1953 ed.) on the subject of interest as part of just compensation and as a penalty for delay in

payment (Sec. 5, pp. 19-33). In this jurisdiction, a study of the cases decided by this Court with respect to the award of interest to the condemnee where there is a gap of time between the taking and the payment, shows that We tend to follow the view just discussed. The first case-it would appear-where the question of interest arose in this jurisdiction was the Philippine Railway Co. vs. Solon, February 20, 1909, 13 Phil. 35-45. The two issues taken there in connection with interest were: (1) From what time should interest be reckoned, from time of the taking possession of the property by the government or from judgment of the trial court; and (2) whether on appeal, appellant-condemnee is entitled to interest during the pendency of the appeal. In disposing of the issues, the Court, relving heavily on American jurisprudence, appears to treat interest as part of just compensation and as an additional amount sufficient to place the owner "in as good a position as money can accomplish, as of the date of the taking." Thus, the Court declared:

It remains to consider what interest the defendant is entitled to from named date. It appears from the record that thecompany opposed the confirmation of the award. Its objections were so far successful that the court reduced the amount awarded by the commissioners. The owner was compelled to appeal and in his appeal has been so far successful as to reverse the action of the the court below. Under these circumstances we think he is entitled to interest on the award until the final determination of this proceeding. What the result would be if he had failed in his appeal, we do not decide. The interest thus allowed will be interest upon the amount awarded by the commissioners from the 2nd day of February, 1907, until payment (13 Phil. 40-44, emphasis supplied).

The Solon case thereafter became the basis of award of interest on expropriation cases like Philippine Railway v. Duran, 33 Phil. 159 [1916]; Manila Railroad Co. v. Alano, 36 Phil. 501 [1917]; Manila

Railroad Co. v. Attorney General, 41 Phil. 177 [1920]; Alejo v. Provincial Government of Cavite, 54 Phil. 304 1930]; Tayabas v. Perez, 66 Phil. 470 [1938]; Republic v. Gonzales, 94 Phil. 957 [1954]; Republic v. Lara, 96 Phil. 172 [1954]; Phil. Executive Commission v. Estacio, 98 Phil. 219 [1956]; Republic of the Philippines v. Deleste, 46 al., 99 Phil. 1035 [1956] Republic v. Garcellano, 103 Phil. 237 [1958]; Yaptinchay, 108 Phil. 1053 [1960]; Republic v. Tayengco, 19 SCRA 900 [1967],and many others, until the matter of payment of interest became an established part of every case where taking and payment were not contemporaneously made. And finally, We confirmed our adherence to the prevailing view in the United States when in the case of Urtula vs. Republic, January 31, 1968, 222 SCRA 477, 480), We declared, through Mr. Justice J.B.L. Reyes, that:... Said interest is not contractual, nor based on delict or quasi-delict, but one that-runs as a matter of law and follows as a matter of course from the right of the landowner to be placed in as good a position as money can accomplish, as of the date of the taking'" (C.J.S. 230; see also Castelvi case, supra, and Republic v. Nable-Lichauco, 14 SCRA 682).In this connection, it must be pointed out that the judicial notice taken by this Court in the Castelvi case (supra, 363) "... of the fact that the value of the Philippine peso has considerably gone down since the year 1959," was premised not on the par value of the peso to the dollar, but on the dollarpeso exchange rates at the time of the taking of the lots and at the time of the payment thereof. In the case of Manuel & Co. vs. CB (38 SCRA. 533-542 [1971]), We distinguished between par value of the peso and the dollar-peso exchange rate. The par value of the peso to the dollar-two pesos to one dollar-is fixed by law and remains intact (see 48, R.A. 265, 1948; Sec. 6,CA No. 699, 1945). Hence, while there was a change of the exchange rate, the par value of the peso as established by law remains unchanged. Such par value can only be altered by the President of the Philippines upon proposal of the Monetary Board with five

members concurring and approved by Congress (Sec. 49[3] RA No. 265). On the other hand, the rate of exchange or exchange rate is the "price, or the indication of the price, at which one can sell or buy with one's own domestic currency a foreign currency unit. Normally, the rate is deterniined by the law of supply and demand for a particular currency" (38 SCRA 533-542). It is submitted that the Castelvi doctrine on the value of our peso is of doubtful legality, considered in the context of the Central Bank case, above discussed. In effect, the Castelvi ruling has devalued our peso; a case of devaluation by judicial fiat. In the light of the foregoing, the de facto devaluation of our peso should not be taken into account in the final determination of the value of the lots, subject matter of the case. In the 1970 case of Dizon-Rivera v. Dizon (33 SCRA 554-557 [1970]), WE ruled against appellants and held that the decrease in the purchasing value of the Philippine peso provides no legal basis or justification for completing their legitime with real properties of the estate instead of being paid in cash, reasoning thus:Neither may the appellants legally insist on their legitime being completed with real properties of the estate instead of being paid in cash, per the approved project of partition. The properties are not available for the purpose, as the testatrix had specifically partitioned and distributed them to her heirs, and the heirs are called upon, as far as feasible to comply with and give effect to the intention of the testatrix as solemnized in her will, by implementing her manifest wish of transmitting the real properties intact to her named beneficiaries, principally the executrix-appellee. The appraisal report of the properties of the estate as filed by the commissioner appointed by the lower court was approved in toto upon joint petition of the parties, and hence, there cannot be said to be any question-and none is presented-as to fairness of the valuation thereof or that the legitimate of the heirs in terms of cash has been understated. The plaint of oppositors that the purchasing

value of the Philippine peso has greatly declined since the testatrix death in January, 1961 provides no legal basis of justification for overturning the wishes and intent of the testatrix. The transmission of rights to the succession are transmitted from the moment of death of the decedent (Article 777, and accordingly, the value thereof must be reckoned as of then, as otherwise, estates would never be settled if there were to be a revaluation with every subsequent flucluation in the values of the currency and properties of the estate. There is evidence in the record that prior to November 25, 1964, one of the oppositors, Bernardita, accepted the suin of P50,000.00 on account of her inheritance, which, per the parties' manifestation, "does not in any way affect the adjudication made to her in the projects of partition." The payment in cash by way of making the proper adjustments in order to meet the requirements of the law on non-impairment of legitimes as well as to give effect to the last will of the testatrix has invariably been availed of and sanctioned see Articles 955, 1080 and 1104, Civil Code). That her co-oppositors would receive their cash differentials only now when the value of the currency has declined further, whereas they could have received them earlier, like Bernardita, at the time of approval of the project of partition and when the peso's purchasing value was higher, is due to their own decision of pursuing the present appeal (emphasis supplied).Additional distinction between the present case and the Castelvi case: The proceedings before the commissioners and before the trial court in the Castelvi case were all in accordance with the provisions of the rules, while this is not so in the present case; because the commissioner's herein did not turn out a valid report, as the commissioners made their own and separate reports and no consensus was reached by them on the classification of the lots, allocation of areas to each class, and the fair market value of each class and the lots as a whole. Furtherinore, no hearing on the reports of the commissioners was made by the trial court in the case

at bar, because of the motion of the herein appellants to submit the same without any (hearing). The finding of the trial court, which was sustained by this Court, that the lots involved in the Castelvi case were residential, was supported by and based on the factual findings of the commissioners, who were unanimous thereon, and the Provincial Appraisal Committee of Pampanga (58 SCRA 356-359): while in the present case no one among the commissioners classified the lots or any portion thereof as residential or one with residential/subdivision potentiality. With respect to Provincial Board Resolution No. 13 on the report of the Provincial Appraisal Committee of La Union, the same was disregarded tor having been passed in haste. In the present case, commissioner Balagot classified the two lots into irrigated riceland, upland riceland, orchard land, pasture land and forest land, Commissioner Rojas similarly classified the lands as above, but adding thereto forestry compound and barrio compound; while Commissioner Molina classified the lots into unirrigated riceland, upland riceland and pasture land. It cannot be seriously claimed that the lots involved in the present case is suitable as, or have potentials tor conversion into, a residential subdivision simply because a 4-hectare area of the same was considered by a member of the provincial appraisal committee as residential. In fact, said 4-hectare area was reflected in the Provincial Appraisal Committee Report, Resolution 13 (Exh. A) as grazing land, not as a residential one (see pp. 138, 173, ROA; pp. 67, 143, Appellants' Brief). Furthermore, none among the commissioners believed the testimony of the said member on that point as no one among them classified the lots or any portion thereof as residential. The fact that the tenants of appellants previously occupied the said area and constructed houses thereon, does not convert the whole area or the portion thus occupied into a residential one. The residential nature of the lot is not determined alone by the presence or absence of houses thereon (Republic v. Garcia, 91 Phil. 46 [1952]). The determination of the true nature of a

lot must take into consideration, among other things, the location topography, kind of soil fertility or productivity, and surroundings of the lot (Manila Railroad Co. Caligsihan, 40 Phil. 326 [1919]; Republic v. Garcia, supra: Republic v. Lara, 50 O.G. 5778 [1954]). Indeed, the evidence relied upon by this Court in concluding that the lots involved in the Castelvi case are residential and not agricultural, shows that:... Castelvi broached the Idea of subdividing her land into residential lots as early as July 11, 1965 in her letter to the Chief of Staff of the Armed Forces of the Philippines (Exh. 5-Castelvi). As a matter of fact, the layout of the subdivision plan was tentatively approved by the National Planning Commission on September 7, 1956. (Exh. 8-Castelvi). The land of Castelvi had not been devoted to agriculture since 1974 when it was leased to the Philippine Army. In 1957 said land was classified as residential, and taxes based on its classification as residential had been paid since then (Exh. 13-Castelvi). The location of the Castelvi land justifies its suitability fora residential subdivision. As found by the trial court, "It is at the left side and the entrance of the Basa Air Base and bounded on two sides by roads (Exh. 13-Castelvi; paragraphs 1 and 2, Exh. 12-Castelvi), the poblacion (of Floridablanca,) the municipal building, and the Pampanga Sugar Mills are close by. The barrioschoolhouse and chapel are also near (Tsn., Nov. 23, 1960, p. 68). The land of Toledo-Gozun (Lot 1-B and Lot 3) are practically of the same condition as the land of Castelvi. They are also contiguous to the Basa Air Base, and are along the road. These lands are near the barrio school house, the barrio Chapel, the Pampanga Sugar Mills, and the Poblacion of Floridablanca (Exhs. 1, 3 and 4-Toledo-Gozun). As a matter of fact, regarding Lot 1-B, it had already been surveyed and subdivided, and its conversion into a residential subdivision was tentatively by the National Planning Commission on July 8, 1959 Exhs. 5 and 6-Toledo-Gozun). As early as June, 1958, no less than 32 men connected with the Philippine Air Force among

them commissioned, officers, non-commissioned officers, and enlisted men had requested Mr. and Mrs. Joaquin D. Gozun to open a subdivision on their lands in question (Exhs, 8, 8-A to 8-ZZ-Toledo-Gozun)" (58 SCRA 357, emphasis supplied).In the present case, there is no evidence in the record warranting a conclusion that the parcels involved have potentials for conversion into a residential subdivision. On the contrary, the location, topography and the use to which the lots involved were, devoted at the time of the filing of expropriation proceedings in the lower court, indicate that they have none. In his report, Commissioner Molina described the location and topography of the lots as follows:

... Starting from the town propwer of Bacnotan, one can reach the property by passing through the barrios of Cabaroan, Sayoan, Salincob, Casianan and finally Sapilang. The place is about 2.5 kilometers north of the the Poblacion along the National Highway up to the so-called Cabaroan junction. From this junction is about a 2-kilometer feeder road going eastward. And from this lateral road is an unsurfaced road of approximately 1.5 kilometers leading to the site of the Agricultural School. However, before the school took possession of the land on May 4, 1963, the place was not accessible at all by any motor vehicles, and that the only means was to hike over paddies, trails and creeks. Topographically, the property of defendants is situated on a high elevation. It consists of mountains and hills forming a semi-circle, and sloping on the sides towards an elongated portion of valley-like depression which is level and developed into ricefields. Because of its high elevation or location, the climate of the place ishealthful, temperate and especially invigorating when one is near or within the vicinity of the waterfall or spring. The climate is of the kind which the Weather Bureau would call the Type I climate; that is, the place has two distinct reasons, a dry season from December to June, when there are light rains or no raisn at all, and wet season, from June to December,

when rains are abundant, heavy and frequent. The soil of the place is good. It has a luxuriant vegetation (pp. 69-70, ROA, emphasis supplied).

The presence of the houses of twenty-three (23) tenants in a 4-hectare area at the time the government took possession of the lots herein involved, is not sufficient proof of that portion's potentialitv for conversion into a residential subdivision, much less of the whole parcel of about 338 hectares. There was no evidence that the houses of the tenants were there constructed because of its residential nature. In all likelihood, the tenants were forced by necessity to construct their Rouses therein to be close to their respective tobacco farms. The fact that under the leasehold system of land tenure, a tenant is allotted a portion for his dwelling does not render the entire landholding no longer agricultural and thereby convert the same into a residential land. WHEREFORE, THE JUDGMENT APPEALED FROM IS HEREBY MODIFIED AND THE PLAINTIFFAPPELLEE REPUBLIC OF THE PHILIPPINES IS HEREBY DIRECTED TO PAY THE DEFENDANTSAPPELLANTS CELESTINO C. JUAN AND ANA TANSECO THE SUM OF TWO HUNDRED THOUSAND (P200,000.00) PESOS, WITH INTEREST AT THE LEGAL RATE OF SIX PERCENT (6%) PER ANNUM FROM MAY 1, 1963. NO COSTS. Fernandez, Guerrero, Abad Santos, De Castro and Melencio-Herrera, JJ., concur. Concepcion Jr. and Santos, JJ., took no part. Separate Opinions FERNANDO, C.J., concurring: Concurs in the opinion of Justice Makasiar as to the legal parts involved and in the opinion of Justice Teehankee as to the accounts due appellants. BARREDO, J., dissenting: I cannot find sufficient evidence to "lorm a clear picture of the classification the anocation of areas as to each class and the fair market value of each class of land. The reports of the comnmissioners are so disparate, no conclusion can be deduced from them. In other words, We do not have enough basis for a fair judgment. AQUINO, J., dissenting: I vote for the affirmance of the

lower court's judgment. TEEHANKEE, J., concurring: I concur with the main opinion of Mr. Justice Makasiar which rejects the appraisal of defendants-appellants' expropriated property by provincial agriculturist Pio Tadina (who was not even appointed by the lower court) in the sum of P616,000.00 as urged by defendants-appellants, whereby plaintiff-appellee Republic of the Philippines would have to pay defendants- appellants (after crediting the sum of P100,000.00 deposited by plaintiff and received by defendants) the further balance of P516,000.00 with 6% interest per annum from May 4, 1963 the date when plaintiff took possession of rhe expropriated property and would amount to a total of well over One Million Pesos (P1,000,000.00). I maintain that defendants-appellants' own valuation of property given in the expropriation proceeding itself is binding on them and sets the limit of the compensation to be awarded them regardless of the patently extravagant and exssive appraisals of some of the court-appointed commissioners. Here defendant-appellant Celestino C. Juan himself in the negotiations for the sale of his property to the State for use as a school site offered it for the price of P190,000.00 (P170,000.00 plus bank loan of P20,000.00), with a down payment of P90,000.00 and the balance of P100,000.00 payable within one year, as per his letter of January 28, 1963. He increased this -aluation further to P300,000.00 in his motion for reconsideration of April 24, 1963. This last evaluation judicially given by defendants-owners is a declaration and admission binding on them, 1 unless they can show that they were laboring under an error of fact. No such error has been shown by defendantsappellants. Nor has any compelling reason been given to justify their being relieved from the binding effects of such admission. The P616,000.-valuation urged by defendants-appellants amounts therefore to double the very valuation of P300,000.00 given by and binding on themselves, exceeding the same by P316,000.00, excluding 90%, interest at 6% per annum for 16 vears since 1963 that would have to be paid. There is no justification for

awarding to the owners double the amount of their own valuation of their property. On the contrary the facts of record bear out that awarding to the owners the compensation set by themselves in the amount of P300,000.00 (Pl10,000.00 more than the original amount asked by them and awarded by the lower court) is a just and reasonable compensation, to wit, the property was bought in 1957 by defendants for P50,000.00 only and the value of their improvements thereon amounted to only Pl,712.60 as of 1963, it is certainly doubtful and contrary to experience that the property would increase in value over 12 times to P616,000.00 whereas the increase in 6 years to P300,000.00 as per the owners' own valuation withou their having done anything to improve the property is quite an optimistic valuation); the property is about six (6) kilometers away from the poblacion of Bacnotan and when the government took possession of the same on May, 4, 1963, it was not accessible at all by motor vehicle and could be reached only by hiking through rice paddies, trails and creek; that it was not fully developed with 95 hectares of pasture land and 70 hectares of forest land and an assessed valuation of P42,120.00. The only justification cited for granting an amount double the owners' own valuation of the property is that the value of the peso has gone down and continues to decline. Such decline provides no valid basis or justification for doubling the fair and just price of P300,000.00 representing defendants-appellants' own judicially admitted valuation of their property (increased in four [4] months by P110,000.00 compared to their original offer to sell the same to the government for only P190,000.00, supra at page 1 hereof). It is settled law that the expropriation price to be considered is that at the beginning of the expropriation and taking of possession. That defendants should now receive the balance of P200,000.00 with legal interest when the value of the peso has declined is due to their own decision of pursuing the present appeal. (See DizonRivera vs. Dizon, 33 SCRA 554, 568). There is no claim of extraordinary, inflation such as to

make applicable Article 1250 of the Civil Code providing that "the value of the currency at the time of the establishment of the obligation shall be the basis of payment." Aside from the fact that this article is applicable only to contractual obligations, neither the competent Executive and monetary authorities nor this Court have ever admitted or declared that the factual assumption of said article (extraordinary inflation) has come into existence. (Velasco vs. Meralco, 42 SCRA 556). The onerous and adverse consequences of such a declaration on the national economy and stability of its finance and currency and on the great majority of average and fixed wage-earners in relation to their contractual debts and obligations are too staggering to contemplate. Finally, there is no reason to disregard the general rule enunciadated in Republic of the Philippines vs. Narciso, 2 that "the owners' valuation of the property may not be binding on the Government or the court, but is should at least set a ceiling price for the compensation to be awarded. Moreover, the prices to be considered are those at the beginning of the expropriation not the increased values brought about by the improvements and actuations of the Government after occupying the premises. ACCORDINGLY, I vote for limiting the increase in compensation to be awarded to defendant appellants to the valuation set by themselves as owner in the amount of P300,000.00 with 6% interest per annum on the balance of P200,000.00 from May 4, 1963, which would bring the total exproprriation value to close to Five Hundred Thousand Pesos (500,000.00) or ten times the original price paid therefor by defendants-appellants. ANTONIO, J., dissenting: I dissent from the main opinion of my distinguished colleagues for the following reasons: (1) Celestino Juan, in making the admission of P300,000.00 as the value of the property, was referring, not to a fair or just, but to a provisional value of his property. The sum was stated four (4) times in his "Urgent Motion for Reconsideration And Or to Lift Writ of Possession, 1 but there is no mistaking that he was referring merely to a provisional value so

that the Republic could obtain immediate possession of the property.... It must be considered, however, that the amount fixed as the provisional value of the lands that are being expropriated does .iot necessarily represent the true and correct value of the land. The value is only "provisional" or "tentative", to serve as the basis for the immediate occupancy of the property being expropriated by the condemnor... (Republic v. Castellvi, L-20629, Aug. 15, 1974, 58 SCRA 336. 359.)Celestino Juan should thus be considered as having judicially admitted P300,000.00 merely as the provisional value of his property and should not be bound by such ,value as the true value. Nor may Juan be bound to his proposal to the principal of the agricultural school in the sum of P190,000.00 as the selling price of his land because when he tendered the proposal he was in urgent need of money to defray expenses in connection with certain criminal cases involving his wife. 2 (2) Judicial or non-judicial admissions made by condemnees as to the value of their properties that are to be expropriated should not be deemed conclusive if such admitted value be unjust, because the Constitution imperatively requires the payment of "just compensation."

Sec. 2. Private property shall not be taken for public use without just compensation. (Constitution, Article IV, Bill of rights.)

(3) There is, moreover, the circumstance that a portion of the land had potential for conversion into a subdivision. In fact, a 4-hectare area was considered by a member of the Provincial Appraisal Committee as residential; it was occupied by tenants who built their houses thereon. 3

We agree with the findings, and the conclusions, of the lower court that the lands that are the subject of expropriation in the present

case, as of August 10, 1959 when the same were taken possession of by the Republic, were residential lands and were adaptable for use as residential subdivisions. Indeed, the owners of these lands have the right to their value for the use for which they would bring he most in the market at the time the same. were taken from them... (Republic v.Castellvi, supra, at p. 358.)(4) The appraisal by Provincial Agriculturist Tadina in the sum of P616,000 appears to be the most realistic and reliable. He was an experienced and competent appraiser, and he undertook the appraisal impartially, as he did so in an official capacity and without the knowledge of Celestino Juan. 4 (5) The mean value of the individual evaluations made by the three (3) Commissioners substantially accords with, or even surpasses, the amount recommended by Tadina, to wite:

Atty. Rogelio Balagot, Chairman and Representative of the Court......................................................................................................P1,045,876.30 Atty. Eufemio Molina, for the Plaintiff...................................135,000.00 Atty. Pablito Rojas, for the Defendants.............................1 ,407,856.00

P2,588,732.30

P2,588,732.30 divided by 3 = P862,910.77

(6) Finally, it cannot be denied that the purchasing power of the peso has, in the meantime, depreciated.

... This Court has also taken judicial notice of the fact that the value of the Philippine peso has considerably gone down since the year 1959... (Republic v. Castellvi, supra, at p. 363.)The ceiling conversion rate of the peso to the dollar in 1963 when the Republic took possession of the property was P3.20 to $1.00; 5 the inter-bank guiding rate for January 20, 1975 was P7.0705, 6

more than double that in 1963; on January 20, 1975, the foreign exchange rate was $1,00 for P7.32; 7 so that even if Celestino Juan is to be considered as having judicially admitted the price of his property in the sum of P300,000.00 (which admission is, as previously stated, qualified or non-categorical), the doubling of this sum at this time is justified. In contrast to the foregoing, land values have considerably appreciated anc continue to increase. # Separate Opinions FERNANDO, C.J., concurring: concurs in the opinion of Justice Makasiar as to the legal parts involved and in the opinion of Justice Teehankee as to the accounts due appellants. BARREDO, J., dissenting: I cannot find sufficient evidence to "lorm a clear picture of the classification the anocation of areas as to each class and the fair market value of each class of land. The reports of the comnmissioners are so disparate, no conclusion can be deduced from them. In other words, We do not have enough basis for a fair judgment. AQUINO, J., dissenting: I vote for the affirmance of the lower court's judgment. TEEHANKEE, J., concurring: I concur with the main opinion of Mr. Justice Makasiar which rejects the appraisal of defendants-appellants' expropriated property by provincial agriculturist Pio Tadina (who was not even appointed by the lower court) in the sum of P616,000.00 as urged by defendants-appellants, whereby plaintiff-appellee Republic of the Philippines would have to pay defendants- appellants (after crediting the sum of P100,000.00 deposited by plaintiff and received by defendants) the further balance of P516,000.00 with 6% interest per annum from May 4, 1963 the date when plaintiff took possession of rhe expropriated property and would amount to a total of well over One Million Pesos (P1,000,000.00). I maintain that defendants-appellants' own valuation of property given in the expropriation proceeding itself is binding on them and sets the limit of the compensation to be awarded them regardless of the patently extravagant and exssive appraisals of some of the court-appointed commissioners. Here defendant-appellant Celestino C. Juan himself in the negotiations for

the sale of his property to the State for use as a school site offered it for the price of P190,000.00 (P170,000.00 plus bank loan of P20,000.00), with a down payment of P90,000.00 and the balance of P100,000.00 payable within one year, as per his letter of January 28, 1963. He increased this -aluation further to P300,000.00 in his motion for reconsideration of April 24, 1963. This last evaluation judicially given by defendants-owners is a declaration and admission binding on them, 1 unless they can show that they were laboring under an error of fact. No such error has been shown by defendantsappellants. Nor has any compelling reason been given to justify their being relieved from the binding effects of such admission. The P616,000. - valuation urged by defendants-appellants amounts therefore to double the very valuation of P300,000.00 given by and binding on themselves, exceeding the same by P316,000.00, excluding 90%, interest at 6% per annum for 16 vears since 1963 that would have to be paid. There is no justification for awarding to the owners double the amount of their own valuation of their property. On the contrary the facts of record bear out that awarding to the owners the compensation set by themselves in the amount of P300,000.00 (P110,000.00 more than the original amount asked by them and awarded by the lower court) is a just and reasonable compensation, to wit, the property was bought in 1957 by defendants for P50,000.00 only and the value of their improvements thereon amounted to only P1,712.60 as of 1963, it is certainly doubtful and contrary to experience that the property would increase in value over 12 times to P616,000.00 whereas the increase in 6 years to P300,000.00 as per the owners' own valuation withou their having done anything to improve the property is quite an optimistic valuation); the property is about six (6) kilometers away from the poblacion of Bacnotan and when the government took possession of the same on May, 4, 1963, it was not accessible at all by motor vehicle and could be reached only by hiking through rice paddies, trails and creek; that it was not fully developed with 95

hectares of pasture land and 70 hectares of forest land and an assessed valuation of P42,120.00. The only justification cited for granting an amount double the owners' own valuation of the property is that the value of the peso has gone down and continues to decline. Such decline provides no valid basis or justification for doubling the fair and just price of P300,000.00 representing defendants-appellants' own judicially admitted valuation of their property (increased in four [4] months by P110,000.00 compared to their original offer to sell the same to the government for only P190,000.00, supra at page 1 hereof). It is settled law that the expropriation price to be considered is that at the beginning of the expropriation and taking of possession. That defendants should now receive the balance of P200,000.00 with legal interest when the value of the peso has declined is due to their own decision of pursuing the present appeal. (See DizonRivera vs. Dizon, 33 SCRA 554, 568). There is no claim of extraordinary, inflation such as to make applicable Article 1250 of the Civil Code providing that "the value of the currency at the time of the establishment of the obligation shall be the basis of payment." Aside from the fact that this article is applicable only to contractual obligations, neither the competent Executive and monetary authorities nor this Court have ever admitted or declared that the factual assumption of said article (extraordinary inflation) has come into existence. (Velasco vs. Meralco, 42 SCRA 556). The onerous and adverse consequences of such a declaration on the national economy and stability of its finance and currency and on the great majority of average and fixed wage-earners in relation to their contractual debts and obligations are too staggering to contemplate. Finally, there is no reason to disregard the general rule enunciadated in Republic of the Philippines vs. Narciso, 2 that "the owners' valuation of the property may not be binding on the Government or the court, but is should at least set a ceiling price for the compensation to be awarded. Moreover, the prices to be considered are those at the beginning of

the expropriation not the increased values brought about by the improvements and actuations of the Government after occupying the premises. ACCORDINGLY, I vote for limiting the increase in compensation to be awarded to defendant appellants to the valuation set by themselves as owner in the amount of P300,000.00 with 6% interest per annum on the balance of P200,000.00 from May 4, 1963, which would bring the total exproprriation value to close to Five Hundred Thousand Pesos (500,000.00) or ten times the original price paid therefor by defendantsappellants. ANTONIO, J., dissenting: I dissent from the main opinion of my distinguished colleagues for the following reasons: (1) Celestino Juan, in making the admission of P300,000.00 as the value of the property, was referring, not to a fair or just, but to a provisional value of his property. The sum was stated four (4) times in his "Urgent Motion for Reconsideration And Or to Lift Writ of Possession, 1 but there is no mistaking that he was referring merely to a provisional value so that the Republic could obtain immediate possession of the property.... It must be considered, however, that the amount fixed as the provisional value of the lands that are being expropriated does .iot necessarily represent the true and correct value of the land. The value is only "provisional" or "tentative", to serve as the basis for the immediate occupancy of the property being expropriated by the condemnor... (Republic v. Castellvi, L-20629, Aug. 15, 1974, 58 SCRA 336. 359.)Celestino Juan should thus be considered as having judicially admitted P300,000.00 merely as the provisional value of his property and should not be bound by such ,value as the true value. Nor may Juan be bound to his proposal to the principal of the agricultural school in the sum of P190,000.00 as the selling price of his land because when he tendered the proposal he was in urgent need of money to defray expenses in connection with certain criminal cases involving his wife. 2 (2) Judicial or non-judicial

admissions made by condemnees as to the value of their properties that are to be expropriated should not be deemed conclusive if such admitted value be unjust, because the Constitution imperatively requires the payment of "just compensation."

Sec. 2. Private property shall not be taken for public use without just compensation. (Constitution, Article IV, Bill of rights.)

(3) There is, moreover, the circumstance that a portion of the land had potential for conversion into a subdivision. In fact, a 4-hectare area was considered by a member of the Provincial Appraisal Committee as residential; it was occupied by tenants who built their houses thereon. 3

We agree with the findings, and the conclusions, of the lower court that the lands that are the subject of expropriation in the present case, as of August 10, 1959 when the same were taken possession of by the Republic, were residential lands and were adaptable for use as residential subdivisions. Indeed, the owners of these lands have the right to their value for the use for which they would bring he most in the market at the time the same. were taken from them... (Republic v.Castellvi, supra, at p. 358.)(4) The appraisal by Provincial Agriculturist Tadina in the sum of P616,000 appears to be the most realistic and reliable. He was an experienced and competent appraiser, and he undertook the appraisal impartially, as he did so in an official capacity and without the knowledge of Celestino Juan. 4 (5) The mean value of the individual evaluations made by the three (3) Commissioners substantially accords with, or even surpasses, the amount recommended by Tadina, to wite:

Atty. Rogelio Balagot, Chairman and Representative of the Court....................................................................................................

..P1,045,876.30 Atty. Eufemio Molina, for the Plaintiff...................................135,000.00 Atty. Pablito Rojas, for the Defendants.............................1 ,407,856.00

P2,588,732.30

P2,588,732.30 divided by 3 = P862,910.77

(6) Finally, it cannot be denied that the purchasing power of the peso has, in the meantime, depreciated.

... This Court has also taken judicial notice of the fact that the value of the Philippine peso has considerably gone down since the year 1959... (Republic v. Castellvi, supra, at p. 363.)The ceiling conversion rate of the peso to the dollar in 1963 when the Republic took possession of the property was P3.20 to $1.00; 5 the inter-bank guiding rate for January 20, 1975 was P7.0705, 6 more than double that in 1963; on January 20, 1975, the foreign exchange rate was $1,00 for P7.32; 7 so that even if Celestino Juan is to be considered as having judicially admitted the price of his property in the sum of P300,000.00 (which admission is, as previously stated, qualified or non-categorical), the doubling of this sum at this time is justified. In contrast to the foregoing, land values have considerably appreciated anc continue to increase. #Footnotes

1 Rule 130. sec. 22 "Admissions of a party. - The act, declaration or omission of a party as to a relevant fact may be given in evidence against him. 2 99 Phil. 1031 (1956). 1 Record on Appeal, pp. 25, 30, 31, & 32. 2 TSN, May 7, 1964, pp. 550-552, as cited in Motion for Reconsideration, Record on Appeal, pp. 426, 478-480. 3 TSN, p. 4, as cited in Appellants' Brief on pages 67 & 143. 4 TSN, p. 407, cited in Record on Appeal, p. 201. 5 Central Bank Memo. March 12, 1962. 6 Philippines Daily Express, January 20. 1975. p. 10. 7 Newsweek, January 20, 1975, p. 43.

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. 138884            June 6, 2002

RODOLFO DE LEON, petitioner, vs.COURT OF APPEALS and SPOUSES ESTELITA and AVELINO BATUNGBACAL, respondents.

QUISUMBING, J.:

Before us is a special civil action for certiorari and prohibition under Rule 65 of the Rules of Court. It seeks to annul and set aside the resolution1 dated January 13, 1999 of the Court of Appeals, in CA-G.R. CV No. 57989, denying petitioner’s motion (a) to dismiss the appeals of private respondents, and (b) to suspend the period to file appellee’s brief. Also assailed is the CA resolution2 dated April 19, 1999, denying petitioner’s motion for reconsideration.

The antecedent facts are as follows:

On March 11, 1996, petitioner Rodolfo de Leon filed with the Regional Trial Court of Bataan, Branch 3, a complaint3 for a sum of money plus damages, with a prayer for preliminary attachment, against herein private respondents Avelino and Estelita Batungbacal. The complaint averred that private respondent Estelita Batungbacal executed a promissory note4 in favor of herein petitioner for her P500,000 loan with stipulated interest at 5 percent monthly. The loan and interest remained unpaid allegedly because the check issued by Estelita was dishonored. Private respondents filed an answer with counterclaim. Estelita admitted the loan obligation, but Avelino denied liability on the ground that his wife was not the designated administrator and therefore had no authority to bind the conjugal partnership. Avelino further averred that his wife contracted the debt without his knowledge and consent.

Based on Estelita’s admission, petitioner filed a motion for partial judgment against Estelita, which the trial court granted in an order5 dated May 14, 1996:

WHEREFORE, the Motion for Partial Judgment on the Pleadings is hereby granted in accordance with Sec. 4 of Rule 36, Rules of Court. As prayed for, judgment is hereby rendered against Estelita Q. Batungbacal, ordering her to pay plaintiff Rodolfo de Leon the principal amount of the loan obligation of P500,000.00 plus the stipulated interest which has accrued thereon at 5% per month since May 1995 until now, plus interest at the legal rate on said accrued interest from date of judicial demand until the obligation is fully paid.

SO ORDERED.

Counsel for private respondent spouses received a copy of the partial judgment on May 21, 1996, but no appeal was taken therefrom. Thus, petitioner filed a motion for execution of said judgment on June 6, 1996. Counsel for private respondents was furnished a copy of the motion on the same date. As private respondents interposed no objection, a writ of execution was correspondingly issued. The sheriff then proceeded to execute the writ and partially satisfied the judgment award against the paraphernal property of Estelita and the conjugal properties of the private respondents with due notice to the latter and their counsel. Again, private respondents interposed no objection.

Pre-trial was held and trial proceeded on two main issues: (1) whether the loan was secured with the knowledge and consent of the husband and whether the same redounded to the benefit of the conjugal partnership; and (2) whether the capital of the husband would be liable if the conjugal assets or the paraphernal property of the wife were insufficient to satisfy the loan obligation. On June 2, 1997, the trial court rendered judgment6 ordering private respondent Avelino Batungbacal to pay the amount of the loan plus interest and other amounts in accordance with Article 121 of the Family Code.

Counsel for private respondent spouses received a copy of the decision on June 6, 1997. Avelino through counsel, filed a notice of appeal7 on June 19, 1997. In a notice of appearance8 dated June 25, 1997 bearing the conformity solely of Estelita, a new counsel appeared in collaboration with the counsel of record for the private respondents. On the same date, Estelita through said new counsel, served a notice that she is appealing both decisions promulgated on May 14, 1996, and June 2, 1997, to the Court of Appeals. However, the trial court, in an order9 dated July 7, 1997 denied the notice of appeal10 filed by Estelita on the ground that said notice was filed beyond the reglementary period to appeal.

Private respondents’ appeal was docketed with the respondent Court of Appeals as CA-G.R. CV No. 57989. Petitioner then filed with the Court of Appeals a Motion to Dismiss the Appeal with Motion to Suspend period to file Appellee’s Brief11 on October 21, 1998. Petitioner based his motion to dismiss on the following grounds: (1) that the statement of the case as well as the statement of the facts in the appellants’ brief do not have page references to the record, and that the authorities relied upon in the arguments are not cited by the page of the report at which the case begins and the page of the report on which the citation is found; (2) that no copy of the appealed decision of the lower court was attached to the appellants’ brief, in violation of the Internal Rules of the Court of Appeals; (3) that private respondents furnished only one copy of the appellants’ brief to the petitioner, also in violation of the Rules of Court; (4) that the decision promulgated against Estelita on May 14, 1996 is no longer appealable; and (5) that the notice of appeal filed on June 25, 1996 by Estelita concerning the decision of the trial court against Avelino was filed beyond the reglementary period to appeal.12 The motion also prayed that the period for filing the appellee’s brief be suspended in view of the pendency of the motion to dismiss.13

Private respondents, in their opposition,14 insisted that the statements of the case as well as the statement of facts in their brief contained page references to the record, and that Estelita had seasonably filed her appeal. Private respondent spouses also stated that they had filed an Amended Appellants’ Brief15 on November 27, 1998 and that two copies thereof had been served on petitioner together with copies of the trial court’s decisions.

On January 13, 1999, the Court of Appeals issued the assailed resolution16 denying petitioner’s motion to dismiss and virtually admitting the Amended Appellants’ Brief as follows:

As submitted by appellants, they adopted pertinent portions of the appealed Decision in the Statement of the Case, indicated specific pages in the appealed decision where the quoted portions are found. In the bottom of page 2 of the brief, is the quoted portions of the decision,

referring to pages 1 and 2 thereof. On page 3 of the brief is the dispositive portion, taken on page 11 of the decision. The rest of the narration in the Statement of the Case are the specific dates of the pleadings, orders, and portions of the decision citing the page references where they are found.

Two (2) copies of the Amended Brief were served upon appellee with the appealed Decision attached as Annex "A", and "B".

Appellant Estellita Batungbacal explained that her appeal was filed on time. She cited Guevarra, et. al. vs. Court of Appeals, et. al., L-49017 and 49024, that a partial judgment may be appealed only together with the judgment in the main case. She personally received a copy of the main Decision, dated June 2, 1997 on June 10, 1997, and filed her notice of appeal dated June 25, 1995 (sic) sent by registered mail on even date, per Registry Receipt No. 2618, attached as Annex "C" hereof, thereby showing that the notice of appeal was filed within 15 days from receipt of the Decision appealed from. At any rate, the merit of appellee’s contention that appellant Estellita Batungbacal can no longer appeal from the decision may be resolved after the case is considered ready for study and report.

WHEREFORE, the motion to dismiss is hereby DENIED, and appellee is required to file his appellee’s brief within forty-five (45) days from receipt hereof.

SO ORDERED.

On January 22, 1999, petitioner filed a Motion for Reconsideration17 of the aforesaid resolution but said motion was denied by the Court of Appeals in a resolution18 dated April 19, 1999, the pertinent portion of which reads as follows:

The resolution promulgated on January 13, 1999 required appellee to file his appellee’s brief within forty-five (45) days from receipt of that resolution, or up to March 4, 1999. Up to this date no appellee’s brief has been submitted.

WHEREFORE, the appeal by appellants is deemed submitted for decision without the benefit of appellee’s brief, and the records of this case is hereby transmitted to the Raffle Committee, for re-raffle, for study and report.

SO ORDERED.

Hence, this Petition for Certiorari and Prohibition19 wherein petitioner contends that respondent Court of Appeals acted:

(1) WITHOUT JURISDICTION IN ENTERTAINING THE APPEAL OF PRIVATE RESPONDENT ESTELITA BATUNGBACAL;

(2) WITH GRAVE ABUSE OF DISCRETION AND IN DISREGARD OF THE EXPRESS MANDATORY REQUIREMENTS OF THE RULES AS WELL AS AGAINST SETTLED JURISPRUDENCE WHEN IT DENIED THE PETITIONER’S MOTION TO DISMISS THE APPEAL OF THE PRIVATE RESPONDENT SPOUSES;

(3) WITH GRAVE ABUSE OF DISCRETION AND IN GRAVE VIOLATION OF DUE PROCESS OF LAW IN ADMITTING THE AMENDED APPELLANT’S BRIEF FILED BY

PRIVATE RESPONDENTS AND IN REQUIRING THE PETITIONER AS APPELLEE TO FILE HIS APPELLEE’S BRIEF;

(4) WITHOUT DUE PROCESS OF LAW WHEN IT RESOLVED TO HAVE THE APPEAL OF THE APPELLANT PRIVATE RESPONDENTS DEEMED SUBMITTED FOR DECISION WITHOUT BENEFIT OF APPELLEE’S BRIEF….20

Simply put, the following are the issues presented before this Court for resolution: (1) whether or not the appellate court erred in taking cognizance of the appeal; and (2) whether or not the appellate court erred or committed grave abuse of discretion when it considered the appeal as submitted for decision without petitioner’s brief.

On the first issue, petitioner contends that the decisions of the trial court in Civil Case No. 6480 promulgated on May 14, 1996 and June 2, 1997 had become final and executory as to private respondent Estelita Batungbacal. This is because Estelita never appealed the partial judgment promulgated on May 14, 1996. In fact, there has been a partial execution of said judgment with notice to and without objection from private respondent spouses. As regards the decision dated June 2, 1997, petitioner contends that the same had become final for failure to file the notice of appeal within 15 days, counted from the time counsel of record for private respondent spouses received a copy on June 6, 1997 and not from the time Estelita received a copy on June 10, 1997. Petitioner points to Section 2 of Rule 13 of the Rules of Court and argues that since the trial court never ordered that service of the judgment be made upon Estelita, she was not entitled to service of the judgment. The fact that she received a copy of the judgment separately from her counsel cannot prejudice the legal consequences arising out of prior receipt of copy of the decision by her counsel. It was thus clear error for the Court of Appeals to accept Estelita’s argument that the reglementary period commenced not from receipt of a copy of the decision by counsel of record but from the time she received a copy of the decision. The appeal having been filed out of time, the Court of Appeals did not have jurisdiction to entertain the appeal of Estelita.

Petitioner also assails the appellants’ brief for certain formal defects. As pointed out in his motion to dismiss filed before the public respondent, there are no page references to the record in the statements of the case and of the facts in the appellants’ brief submitted by private respondents. Petitioner asserts that while there are many pleadings and orders mentioned in said statements, only the decision dated June 2, 1997 is cited, and the citation is limited only to the particular page or pages in said decision where the citation or quotation is taken, without any reference to the pages in the record where the decision can be found. Neither is there reference to the pages in the record where the particular cited or quoted portions of the decision can be found.

Petitioner likewise alleges that the authorities relied upon in the appellants’ brief of private respondents are also not cited by the page on which the citation is found, as required in Sec. 13 (f) of Rule 44 of the Rules of Court. Page references to the record are also required in Section 13, paragraphs (c), (d) and (f) of Rule 44 and absence thereof is a ground for dismissal of the appeal, pursuant to Sec. 1 (f) of Rule 50 of the Rules of Court. Petitioner also harps on the failure of private respondents to furnish petitioner with two copies of the original appellants’ brief, to submit proof of service of two copies of the brief on the appellee, and to furnish the petitioner with two copies of the amended appellants’ brief as required by the Rules of Court. Additionally, petitioner asserts that the failure of private respondents to append copies of the appealed decisions to their appellants’ brief constitutes a violation of the Internal Rules of the Court of Appeals and is likewise a ground for dismissal under Section 1 of Rule 50 of the Rules of Court.

Lastly, petitioner contends that the virtual admission into the record by the respondent court of the amended appellants’ brief of the private respondents under the resolution dated January 13, 1999

and its corresponding action to require the petitioner to respond thereto, constitute grave abuse of discretion and blatant disregard of due process of law because the amended brief was filed without leave of court.

Private respondents, for their part, argue that the resolutions being assailed by petitioner are interlocutory in character because the Court of Appeals still has to decide the appeal on the merits; hence, certiorari does not lie in his favor. Private respondents allege that petitioner has another adequate and speedy remedy, i.e., to file his brief raising all issues before the Court of Appeals. Once the appeal is resolved on the merits, all proper issues may be elevated to the Supreme Court. An order denying a motion to dismiss being merely interlocutory, it cannot be the basis of a petition for certiorari. The proper remedy is to appeal in due course after the case is decided on the merits.

We find the petition devoid of merit.

On the first issue, we find that the Court of Appeals did not act without jurisdiction in entertaining the appeal filed by private respondent Estelita Batungbacal. Contrary to petitioner’s apparent position, the judgments rendered by the trial court in this case are not several judgments under the Rules of Court so that there would be multiple periods of finality.

A several judgment is proper only when the liability of each party is clearly separable and distinct from that of his co-parties, such that the claims against each of them could have been the subject of separate suits, and judgment for or against one of them will not necessarily affect the other.21 Where a common cause of action exists against the defendants, as in actions against solidary debtors, a several judgment is not proper. In this case, private respondents are sued together under a common cause of action and are sought to be held liable as solidary debtors for a loan contracted by Estelita. This is the clear import of the allegation in the complaint that the proceeds of the loan benefited the conjugal partnership.

Thus, between the two judgments rendered by the trial court, there could only be one judgment that finally disposes of the case on the merits. Receipt of notice of this final judgment marks the point when the reglementary period is to begin running. In this case, that judgment is the decision22 rendered by the trial court on June 2, 1997 and it is only from the date of notice of this decision that the reglementary period began to run. The partial judgment dated May 14, 1996 was rendered only with respect to one issue in the case and is not the final and appealable order or judgment that finally disposes of the case on the merits.23 It must, therefore, only be appealed together with the decision dated June 2, 1997.

A final order is that which gives an end to the litigation.24 When the order or judgment does not dispose of the case completely but leaves something to be done upon the merits, it is merely interlocutory.25 Quite obviously, the partial judgment ordering Estelita to pay petitioner is an interlocutory order because it leaves other things for the trial court to do and does not decide with finality the rights and obligations of the parties. Specifically, at the time the partial judgment was rendered, there remained other issues including whether the husband Avelino had any liability under Article 121 of the Family Code. However, as the partial judgment disposed of one of the issues involved in the case, it is to be taken in conjunction with the decision dated June 2, 1997. Together, these two issuances form one integrated decision.

The question now is when the period to appeal should actually commence, from June 6, 1997, as petitioner contends; or from June 10, 1997, as private respondent Estelita Batungbacal claims? We hold that the period began to run on June 6, 1997 when counsel for private respondents received a copy of the decision dated June 2, 1997. When a party is represented by counsel of record, service of orders and notices must be made upon said attorney and notice to the client and to any other

lawyer, not the counsel of record, is not notice in law.26 The exception to this rule is when service upon the party himself has been ordered by the court.27 In this case, it does not appear that there was any substitution of counsel or that service upon private respondent Estelita Batungbacal had been specifically ordered by the trial court; hence, the counsel of record for the private respondents is presumed to be their counsel on appeal and the only one authorized to receive court processes. Notice of the judgment upon such counsel, therefore, was notice to the clients for all legal intents and purposes.

Private respondents’ appeal had been taken within the reglementary period since Avelino Batungbacal had filed a notice of appeal on June 19, 1997 or 13 days from their counsel’s receipt of the decision on June 6, 1997. Respondent spouses having been jointly sued under a common cause of action, an appeal made by the husband inures to the benefit of the wife. The notice of appeal filed by Estelita was a superfluity, the appeal having been perfected earlier by her husband.

We come now to petitioner’s contention that the appellants’ brief suffers from fatal defects.

Worth stressing, the grounds for dismissal of an appeal under Section 1 of Rule 5028 of the Rules of Court are discretionary upon the Court of Appeals. This can be seen from the very wording of the Rules which uses the word ‘may’ instead of ‘shall.’ This Court has held in Philippine National Bank vs. Philippine Milling Co., Inc.29 that Rule 50, Section 1 which provides specific grounds for dismissal of appeal manifestly "confers a power and does not impose a duty." "What is more, it is directory, not mandatory."30 With the exception of Sec. 1(b), the grounds for the dismissal of an appeal are directory and not mandatory, and it is not the ministerial duty of the court to dismiss the appeal.31 The discretion, however, 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.32

The Court of Appeals rightly exercised its discretion when, in denying petitioner’s motion to dismiss, it ruled that the citations contained in the appellants’ brief were in substantial compliance with the rules. Where the citations found in the appellants’ brief could sufficiently enable the appellate court to locate expeditiously the portions of the record referred to, there is substantial compliance with the requirements of Section 13(c) and (d), Rule 46 of the Rules of Court. Such determination was properly within the appellate court’s discretion. Nothing in the records indicate that it was exercised capriciously, whimsically, or with a view of permitting injury upon a party litigant. For the same reasons, we hold that the respondent Court of Appeals also did not err when it did not dismiss the appeal based on the allegation that appellants’ brief failed to comply with the internal rules of said court.

However, the Court of Appeals erred in requiring petitioner to file the appellee’s brief in response to the amended appellants’ brief. Note that the amended brief was filed without the proper motion for leave to do so and corresponding order from the respondent court. Even more significant, it was filed beyond the extensions of time granted to appellants. The discretion in accepting late briefs conferred upon respondent court which this Court applied in the cases of Maqui vs. CA33 and Vda. de Haberer vs. CA,34 finds no application under the present circumstances because, unlike in these two cases, here no valid reason was advanced for the late filing of the amended brief. While the amended brief35 might contain no substantial and prejudicial changes, it was error for the respondent court to accept the amended brief as filed and then require petitioner to file appellee’s brief because admittedly the amended brief was filed beyond August 31, 1998, the last period of extension granted to private respondents.

On the second issue, we hold that the Court of Appeals did not commit grave abuse of discretion in considering the appeal submitted for decision. The proper remedy in case of denial of the motion to dismiss is to file the appellee’s brief and proceed with the appeal. Instead, petitioner opted to file a

motion for reconsideration which, unfortunately, was pro forma. All the grounds raised therein have been discussed in the first resolution of the respondent Court of Appeals. There is no new ground raised that might warrant reversal of the resolution. A cursory perusal of the motion would readily show that it was a near verbatim repetition of the grounds stated in the motion to dismiss; hence, the filing of the motion for reconsideration did not suspend the period for filing the appellee’s brief. Petitioner was therefore properly deemed to have waived his right to file appellee’s brief.

WHEREFORE, the petition is DENIED. The resolutions dated January 13, 1999 and April 19, 1999 of the Court of Appeals in CA-G.R. CV No. 57989 are AFFIRMED, and the Court of Appeals is ordered to proceed with the appeal and decide the case with dispatch. No pronouncement as to costs.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

G.R. No. 161739             May 4, 2006

ALFREDO BOKINGO, Petitioner, vs.THE HONORABLE COURT OF APPEALS, the HEIRS OF CELESTINO BUSA, represented by FELICIDAD BUSA-PANAL and ERNESTO M. CAMPOS, Respondents.

D E C I S I O N

CALLEJO, SR., J.:

Before the Court is the petition for review on certiorari filed by Alfredo Bokingo seeking to reverse and set aside the Decision1 dated December 17, 2003 of the Court of Appeals (CA) in CA-G.R. SP No. 71510 which dismissed his petition for certiorari filed therewith.

The factual and procedural antecedents are as follows:

Petitioner Alfredo Bokingo is one of the defendants in the complaint for injunction and damages filed by Ernesto Campos, the Heirs of Celestino Busa,2 the Heirs of Felicidad Busa-Panal3 and the Heirs of Concordia Busa.4 The complaint was filed with the Regional Trial Court (RTC) of Butuan City, Branch 3 thereof, and docketed as Civil Case No. 1003. The complaint alleged as follows:

CAUSE OF ACTION

3. Plaintiffs [herein respondents] are co-owners of the land subject matter. By virtue of the right of representation, the heirs of FELICIDAD BUSA-PANAL and CONCORDIA S. BUSA and REYNALDO S. BUSA, respectively;

4. Defendants in this case are heirs of MIGUEL BOKINGO;

5. Defendants ALFREDO BOKINGO [herein petitioner], WENCESLAO B. AMBRAY, JR., ROSA B. AMBRAY, CELIA A. ALMORA and JOSELITO B. AMBRAY, filed an application for titling of a parcel of land before the Department of Environment and Natural Resources, Office of the CENRO, Ochoa Avenue, Butuan City;

6. The land subject matter of the application of defendants is a parcel of land located at Baan (Buhangin), Butuan City, containing an area of 2.1600 hectares, more or less;

7. The land subject matter of the application for titling of defendants is a parcel of land inherited by plaintiffs from their father, the late CELESTINO BUSA. This parcel of land is described particularly as:

TAX DECLARATION NO. GR.-10-002-0189-A

"A parcel of land covered by Tax Declaration No. GR-10-002-0189-A, situated in Buhangin, Butuan City, containing an area of 2.1600 HAS., more or less. Bounded on the North – Elisa Busa, South - Pastor Ago, East – Ho. Miguel Bokingo and on the West – Baan River."

8. When plaintiffs knew of defendants’ application, plaintiffs filed a protest against defendants’ application on February 5, 1996. Attached as Annex A is the Protest;

9. On November 24, 1998, the Provincial Environment and Natural Resources Officer, HUGO I. BAÑOSIA, resolved the Protest in favor of Plaintiffs-the protestant in the DENR case. Attached as Annex B is the order;

10. On January 6, 1999, the Provincial Environment and Natural Resources Officer, HUGO T. BAÑOSIA, issued a certification stating that the order dated November 24, 1998 has become final and executory. Attached as Annex C is the machine copy of the Certification;

11. On September 9, 1999, the same DENR Officer HUGO T. BAÑOSIA issued an Order of Execution which states that:

In complying herewith, the Land Management Officer III concerned should be instructed to set forth the whole proceeding in writing signed by the parties and witnesses, if possible, submit and return to this Office within sixty (60) days from receipt hereof, to be used as evidence should it be necessary to institute any action, criminal or otherwise, against any party who may refuse to obey the same.

SO ORDERED, Butuan City, September 9, 1999.

12. Plaintiffs requested on June 23, 1999, for a Survey Authority to survey the land subject matter of this case before the CENRO Office of Butuan City. Attached as Annex D is the Survey Application;

13. On July 30, 1999, A Survey Authority was issued by the CENRO of Butuan City, authorizing plaintiff ENGR. ERNESTO M. CAMPOS, JR., to survey the land subject matter of the DENR case and the case at bar. Attached as Annex E is the Survey Authority;

14. On November 18, 1999 at 11:00 A.M., FELICIDAD BUSA-PANAL, MILAGROS BUSA SIMOGAN, TERESITA BUSA LINAO, JIMMY BUSA-PANAL, son of Felicidad Busa-Panal,

ALFREDO BUSA-PANAL, son-in-law of Concordia S. Busa, personnel of the Butuan PNP and the personnel of ENGR. ERNESTO M. CAMPOS went to the area subject matter of this case to survey the land. Unfortunately, Defendant SPO3 FERDINAND B. DACILLO and Defendant ALFREDO BOKINGO, representatives of defendants, told the survey group to stop and not to enter the area subject matter of this case. Attached as Annex F is the report of CENRO Officer who [was] present during the November 18, 1999 survey which was stopped by SPO3 FERDINAND B. DACILLO and ALFREDO BOKINGO;

15. Plaintiff[s] availed of the Barangay Justice System to resolve the controversy regarding the survey but to no avail, defendants still refused to allow plaintiffs to survey the area. Thus, a Certificate to File Action was issued by the Lupong Tagapamayapa. Copy of the same is hereto attached as Annex G;

16. The defendants did not exercise honesty and good faith in their acts which is a violation of Article 19 of the New Civil Code, and which entitles the plaintiffs for damages;

17. The acts of defendants constrained the plaintiff[s] to litigate and to incur attorney’s fees in the amount of PhP10,000.00 plus litigation expenses estimated at PhP10,000.00.

PRAYER

Wherefore, premises considered, it is respectfully prayed that after hearing, this Honorable Court:

1) Enjoin permanently the illegal acts of defendants of preventing the survey of the land subject matter of this case by ENGR. ERNESTO M. CAMPOS;

2) Order defendants to pay plaintiffs the sum of P10,000.00 as attorney’s fees, P10,000.00 as litigation expenses;

3) Order defendants to pay damages to plaintiff;

4) Such other reliefs just and reasonable under the circumstances.5

Petitioner Bokingo, as one of the defendants in the above complaint, filed with the court a quo a motion to dismiss alleging that the latter has no jurisdiction over the subject matter of the claim. Specifically, petitioner Bokingo contended that it could be gleaned from the complaint that the issue between the parties involved the possession of the land. As such, the assessed value of the land was crucial to determine the court’s jurisdiction over the subject matter in accordance with either Section 19(2)6 or Section 33(3)7 of Batasang Pambansa Blg. 1298 as amended by Republic Act No. 7691. If the assessed value thereof is P20,000.00 or less, then the Municipal Trial Court (MTC) has jurisdiction over the subject matter. Otherwise, jurisdiction is with the RTC.

Petitioner Bokingo pointed out in his Motion to Dismiss that the assessed value of the land subject matter of the complaint was not indicated. Nonetheless, he proffered that based on his father’s tax declaration covering the subject land, its assessed value was only P14,410.00. Consequently, it was allegedly clear that the court a quo, a Regional Trial Court, had no jurisdiction over the subject matter of the complaint filed by the respondents. Rather, in view of the assessed value of the subject land which was allegedly less than the P15,000.00, jurisdiction properly belonged to the MTC.

Petitioner Bokingo thus urged the court a quo to dismiss the complaint filed by the respondents for lack of jurisdiction over the subject matter thereof.

Acting thereon, the court a quo issued the Order dated March 13, 2002 denying the motion to dismiss. It pointed out that the complaint’s allegation is that the respondents, as plaintiffs, are entitled to have the subject land surveyed after petitioner Bokingo’s and his co-claimants’ application for the titling of the subject land was dismissed by the Provincial Environment and Natural Resources Officer (PENRO) and the respondents were declared to have a better right to file a public land application covering the same. Further, the relief being sought in the complaint is injunction in order that the respondents’ right to survey the subject land would not be defeated.

Based on these allegations, the court a quo held that it had jurisdiction over the subject matter of the claim under Section 2 of Rule 58 of the Rules of Court which provides in part that "[a] preliminary injunction may be granted by the court where the action or proceeding is pending." It accordingly denied petitioner Bokingo’s motion to dismiss the complaint for lack of jurisdiction. 1avvphil.net

Petitioner Bokingo forthwith filed with the Court of Appeals a petition for certiorari alleging grave abuse of discretion on the part of the court a quo in denying his motion to dismiss.

On December 17, 2003, the CA rendered the assailed Decision dismissing the said petition for lack of merit, in fact and in law. It ruled that the remedy of certiorari is unavailing to petitioner Bokingo because "an order denying a motion to dismiss is interlocutory and cannot be the subject of the extraordinary petition for certiorari or mandamus."9

It was noted that the records fail to disclose that petitioner Bokingo filed a motion for reconsideration of the order of the court a quo. According to the CA, such omission warranted the outright dismissal of the petition for certiorari. Finally, it was not shown or even alleged in the petition that the court a quo, in issuing the assailed order, acted with grave abuse of discretion amounting to lack of jurisdiction. The issue raised by petitioner Bokingo, the CA held, was proper for an appeal but not a petition for certiorari.

Aggrieved, petitioner Bokingo now comes to the Court seeking the reversal of the said decision of the CA which dismissed his petition for certiorari filed therewith. He insists that the complaint filed by the respondents with the court a quo is a possessory action. To determine which court, the RTC or MTC, has primary jurisdiction, petitioner Bokingo theorizes that it is necessary that the assessed value of the land be alleged in the initiatory complaint. Absent such allegation, the court where the case was filed should allegedly preliminarily determine the assessed value of the subject property to determine whether or not it has jurisdiction over the subject matter of the claim. In the present case, according to petitioner Bokingo, the assessed value of the subject land is only P14,410.00; hence, jurisdiction thereof properly belongs to the MTC in accordance with Section 19(2) or 33(3) of BP Blg. 129 as amended by RA 7691.

The petition is bereft of merit.

Preliminarily, the Court finds no reversible error in the dismissal by the CA of petitioner Bokingo’s petition for certiorari filed therewith. As correctly held by the CA, the mere fact that he failed to move for the reconsideration of the court a quo’s order denying his motion to dismiss was sufficient cause for the outright dismissal of the said petition. Certiorari as a special civil action will not lie unless a motion for reconsideration is first filed before the respondent court to allow it an opportunity to correct its errors, if any.10 Petitioner Bokingo did not proffer any compelling reason to warrant deviation by the CA from this salutary rule. As further observed by the CA, petitioner Bokingo failed to even allege grave abuse of discretion on the part of the court a quo in rendering the order denying his motion to dismiss.

In any case, the present petition lacks substantive merit. It is axiomatic that the nature of the action and which court has original and exclusive jurisdiction over the same is determined by the material allegations of the complaint, the type of relief prayed for by the plaintiff, and the law in effect when the action is filed, irrespective of whether the plaintiffs are entitled to some or all of the claims asserted therein.11 The caption of the complaint is not determinative of the nature of the action. Nor does the jurisdiction of the court depend upon the answer of the defendant or agreement of the parties, or to the waiver or acquiescence of the parties.12

A careful perusal of the respondents’ complaint, quoted earlier, shows that it alleges that per the Order dated November 24, 1998 of PENRO of Butuan City, petitioner Bokingo’s and his co-claimants’ application for titling of the subject land was rejected. On the other hand, in the same order it was declared that the respondents, if qualified, may file an appropriate public land application covering the same land. It was further alleged that the said order became final and executory, and in connection therewith, the respondents were authorized by the City Environment and Natural Resources Officer (CENRO) of Butuan City to conduct a survey on the subject land. However, petitioner Bokingo, through his representatives, unjustly prevented the conduct of the said survey. Even when the matter regarding the survey was submitted to the Lupong Tagapamayapa, petitioner Bokingo still allegedly refused to allow the respondents to survey the subject land. Hence, the Complaint for Injunction filed by the respondents where the principal relief sought is to enjoin permanently the illegal acts of the defendants therein, including petitioner Bokingo, of preventing the survey of the land subject matter of the case.

In this connection, it is well to note that the Court had the occasion to explain that "in determining whether an action is one the subject matter of which is not capable of pecuniary estimation, the nature of the principal action, or remedy sought must first be ascertained. If it is primarily for the recovery of a sum of money, the claim is considered capable of pecuniary estimation, and jurisdiction over the action will depend on the amount of the claim. However, where the basic issue is something other than the right to recover a sum of money, where the money claim is purely incidental to, or a consequence of, the principal relief sought, the action is one where the subject of litigation may not be estimated in terms of money, which is cognizable exclusively by Regional Trial Courts."13

As gleaned from the complaint, the principal relief sought by the respondents in their complaint is for the court a quo to issue an injunction against petitioner Bokingo and his representatives to permanently enjoin them from preventing the survey of the subject land. For clarity, the prayer of the complaint reads:

Wherefore, premises considered, it is respectfully prayed that after hearing, this Honorable Court:

1) Enjoin permanently the illegal acts of defendants of preventing the survey of the land subject matter of this case by ENGR. ERNESTO M. CAMPOS;

2) Order defendants to pay plaintiffs the sum of P10,000.00 as attorney’s fees, P10,000.00 as litigation expenses;

3) Order defendants to pay damages to plaintiff;

4) Such other reliefs just and reasonable under the circumstances.14

Contrary to the view posited by petitioner Bokingo, the cause of action of the respondents’ complaint is not, as yet, to recover the possession of the subject land. There are three kinds of actions to judicially recover possession of real property and these are distinguished in this wise:

What really distinguishes an action for unlawful detainer from a possessory action (accion publiciana) and from a reinvindicatory action (accion reinvindicatoria) is that the first is limited to the question of possession de facto. An unlawful detainer suit (accion interdictal) together with forcible entry are the two forms of an ejectment suit that may be filed to recover possession of real property. Aside from the summary action of ejectment, accion publiciana or the plenary action to recover the right of possession and accion reinvindicatoria or the action to recover ownership which includes recovery of possession, make up the three kinds of actions to judicially recover possession.15

Significantly, the respondents’ complaint has not sought to recover the possession or ownership of the subject land. Rather, it is principally an action to enjoin petitioner Bokingo and his representatives from committing acts that would tend to prevent the survey of the subject land. It cannot be said therefore that it is one of a possessory action. The respondents, as plaintiffs in the court a quo, to be entitled to the injunctive relief sought, need to establish the following requirements: (1) the existence of a right to be protected; and (2) that the acts against which the injunction is to be directed are violative of the said right. As such, the subject matter of litigation is incapable of pecuniary estimation and properly cognizable exclusively by the court a quo, a Regional Trial Court under Section 19 (1) of BP Blg. 129, as amended by RA 7691:

SEC. 19. Jurisdiction in Civil Cases. – Regional Trial Courts shall exercise exclusive original jurisdiction:

(1) In all civil actions in which the subject of the litigation is incapable of pecuniary estimation;

x x x

Hence, the court a quo did not err in denying petitioner Bokingo’s motion to dismiss.

WHEREFORE, premises considered, the petition is DENIED and the assailed Decision dated December 17, 2003 of the Court of Appeals in CA-G.R. SP No. 71510 is AFFIRMED in toto.

SO ORDERED.

ROMEO J. CALLEJO, SR.Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN Chief JusticeChairperson

CONSUELO YNARES-SANTIAGOAssociate Justice

MA. ALICIA AUSTRIA-MARTINEZAsscociate Justice

MINITA V. CHICO-NAZARIOAssociate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

ARTEMIO V. PANGANIBANChief Justice

SECOND  DIVISION LEONOR B. CRUZ,                                  Petitioner,

- versus -

TEOFILA M. CATAPANG,                                  Respondent.

 G.R. No. 164110

     Present:

     QUISUMBING, J., Chairperson,     CARPIO,     CARPIO MORALES,     TINGA, and     VELASCO, JR., JJ.

Promulgated:

February 12, 2008x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

QUISUMBING, J.:

This petition for review seeks the reversal of the Decision[1] dated September 16, 2003 and the Resolution[2] dated June 11, 2004 of the Court of Appeals in CA-G.R. SP No. 69250.  The Court of Appeals reversed the Decision[3] dated October 22, 2001 of the Regional Trial Court (RTC), Branch 86, Taal, Batangas, which had earlier affirmed the Decision[4] dated September 20, 1999 of the 7th Municipal Circuit Trial Court (MCTC) of Taal, Batangas ordering respondent to vacate and

deliver possession of a portion of the lot co-owned by petitioner, Luz Cruz and Norma Maligaya.

The antecedent facts of the case are as follows.

Petitioner Leonor B. Cruz, Luz Cruz and Norma Maligaya are the co-owners of a parcel of land covering an area of 1,435 square meters located at Barangay Mahabang Ludlod, Taal, Batangas.[5]  With the consent of Norma Maligaya, one of the aforementioned co-owners, respondent Teofila M. Catapang built a house on a lot adjacent to the abovementioned parcel of land sometime in 1992.  The house intruded, however, on a portion of the co-owned property.[6]

In the first week of September 1995, petitioner Leonor B. Cruz visited the property and was surprised to see a part of respondent’s house intruding unto a portion of the co-owned property.  She then made several demands upon respondent to demolish the intruding structure and to vacate the portion encroaching on their property.  The respondent, however, refused and disregarded her demands.[7] 

On January 25, 1996, the petitioner filed a complaint[8] for forcible entry against respondent before the 7th MCTC of Taal, Batangas.  The MCTC decided in favor of petitioner, ruling that consent of only one of the co-owners is not sufficient to justify defendant’s construction of the house and possession of the portion of the lot in question.[9]  The dispositive portion of the MCTC decision reads:

WHEREFORE, judgment is hereby rendered ordering the defendant or any person acting in her behalf to vacate and deliver the possession of the area illegally occupied to the plaintiff; ordering the defendant to pay plaintiff reasonable attorney’s fees of P10,000.00, plus costs of suit.

SO ORDERED.[10]

On appeal, the RTC, Branch 86, Taal, Batangas, affirmed the MCTC’s ruling in a Decision dated October 22, 2001, the dispositive portion of which states:

Wherefore, premises considered, the decision [appealed] from is hereby affirmed in toto.

SO ORDERED.[11]

After her motion for reconsideration was denied by the RTC, respondent filed a petition for review with the Court of Appeals, which reversed the RTC’s decision.  The Court of Appeals held that there is no cause of action for forcible entry in this case because respondent’s entry into the property, considering the consent given by co-owner Norma Maligaya, cannot be characterized as one made through strategy or stealth which gives rise to a cause of action for forcible entry. [12]  The Court of Appeals’ decision further held that petitioner’s remedy is not an action for ejectment but an entirely different recourse with the appropriate forum.  The Court of Appeals disposed, thus:

WHEREFORE, premises considered, the instant Petition is hereby GRANTED.   The challenged Decision dated 22 October 2001 as well as the Order dated 07 January 2002 of the Regional Trial Court of Taal, Batangas, Branch 86, are hereby REVERSED and SET ASIDE and, in lieu thereof, another is entered DISMISSING the complaint for forcible entry docketed as Civil Case No. 71-T.

SO ORDERED.[13]

After petitioner’s motion for reconsideration was denied by the Court of Appeals in a Resolution dated June 11, 2004, she filed the instant petition.

Raised before us for consideration are the following issues:I.

WHETHER OR NOT THE KNOWLEDGE AND CONSENT OF CO-OWNER NORMA MALIGAYA IS A VALID LICENSE FOR THE RESPONDENT TO ERECT THE BUNGALOW HOUSE ON THE PREMISES OWNED PRO-INDIVISO SANS CONSENT FROM THE PETITIONER AND OTHE[R] CO-OWNER[.]

II.

WHETHER OR NOT RESPONDENT, BY HER ACTS, HAS ACQUIRED EXCLUSIVE OWNERSHIP OVER THE PORTION OF THE LOTSUBJECT OF THE PREMISES PURSUANT TO THE CONSENT GRANTED UNTO HER BY CO-OWNER NORMA MALIGAYA TO THE EXCLUSION OF THE PETITIONER AND THE OTHER CO-OWNER.[14]

III.

. . . WHETHER OR NOT RESPONDENT IN FACT OBTAINED POSSESSION OF THE PROPERTY IN QUESTION BY MEANS OF SIMPLE STRATEGY.[15]

Petitioner prays in her petition that we effectively reverse the Court of Appeals’ decision.

Simply put, the main issue before us is whether consent given by a co-owner of a parcel of land to a person to construct a house on the co-owned property warrants the dismissal of a forcible entry case filed by another co-owner against that person.

In her memorandum,[16] petitioner   contends that   the   consent   and knowledge of co-owner Norma Maligaya cannot defeat the action for forcible entry since it is a basic principle in the law of co-ownership that no individual co-owner can claim title to any definite portion of the land or thing owned in common until partition.

On the other hand, respondent in her memorandum[17] counters that the complaint for forcible entry cannot prosper because her entry into the property was not through strategy or stealth due to the consent of one of the co-owners.  She further argues that since Norma Maligaya is residing in the house she built, the issue is not just possession de facto but also one of possession de jure since it involves rights of co-owners to enjoy the property.

As to the issue of whether or not the consent of one co-owner will warrant the dismissal of a forcible entry case filed by another co-owner against the person who was given the consent to construct a house on the co-owned property, we have held that a co-owner cannot devote common property to his or her exclusive use to the prejudice of the co-ownership.[18]  In our view, a co-owner cannot give valid consent to another to build a house on the co-owned property, which is an act tantamount to devoting the property to his or her exclusive use.

Furthermore, Articles 486 and 491 of the Civil Code provide:

Art. 486.    Each co-owner may use the thing owned in common, provided he does so in accordance with the purpose for which it is intended and in such a way as not to injure the interest of the co-ownership or prevent the other co-owners from using it according to their rights.  The purpose of the co-ownership may be changed by agreement, express or implied.

Art. 491.    None of the co-owners shall, without the consent of the others, make alterations in the thing owned in common, even though benefits for all would result therefrom.  However, if the withholding of the consent by one or more of the co-owners is clearly prejudicial to the common interest, the courts may afford adequate relief.

Article 486 states each co-owner may use the thing owned in common provided he does so in accordance with the purpose for which it is intended and in such a way as not to injure the interest of the co-ownership or prevent the other co-owners from using it according to their rights.  Giving consent to a third person to construct a house on the co-owned property will injure the interest of the co-ownership and prevent other co-owners from using the property in accordance with their rights.

Under Article 491, none of the co-owners shall, without the consent of the others, make alterations in the thing owned in common. It necessarily follows that none of the co-owners can, without the consent of the other co-owners, validly consent to the making of an alteration by another person, such as respondent, in the thing owned in common. Alterations include any act of strict dominion or ownership and any encumbrance or disposition has been held implicitly to be an act of alteration.[19]  The construction of a house on the co-owned property is an act of dominion.  Therefore, it is an alteration falling under Article 491 of the Civil Code.  There being no consent from all co-owners, respondent had no right to construct her house on the co-owned property.  

Consent of only one co-owner will not warrant the dismissal of the complaint for forcible entry filed against the builder.  The consent given by Norma Maligaya in the absence of the consent of petitioner and Luz Cruz did not vest upon respondent any right to enter into the co-owned property.  Her entry into the property still falls under the classification “through strategy or stealth.” 

The Court of Appeals held that there is no forcible entry because respondent’s entry into the property was not through strategy or stealth due to the consent given to her by one of the co-owners.  We cannot give our imprimatur to this sweeping conclusion.  Respondent’s entry into the property without the permission of petitioner could appear to be a secret and clandestine act done in connivance with co-owner Norma Maligaya whom respondent allowed to stay in her house.  Entry into the land effected clandestinely without the knowledge of the other co-owners could be categorized as possession by stealth.[20]  Moreover, respondent’s act of getting only the consent of one co-owner, her sister Norma Maligaya, and allowing the latter to stay in the constructed house, can in fact be considered as a strategy which she utilized in order to enter into the co-owned property.  As such, respondent’s acts constitute forcible entry.

          Petitioner’s filing of a complaint for forcible entry, in our view, was within the one-year period for filing the complaint.  The one-year period within which to bring

an action for forcible entry is generally counted from the date of actual entry to the land.  However, when entry is made through stealth, then the one-year period is counted from the time the petitioner learned about it.[21]  Although respondent constructed her house in 1992, it was only in September 1995 that petitioner learned of it when she visited the property. Accordingly, she then made demands on respondent to vacate the premises.  Failing to get a favorable response, petitioner filed the complaint on January 25, 1996, which is within the one-year period from the time petitioner learned of the construction.

WHEREFORE, the petition is GRANTED.  The Decision dated September 16, 2003 and the Resolution dated June 11, 2004 of the Court of Appeals in CA-G.R. SP No. 69250 are REVERSED and SET ASIDE.  The Decision dated October 22, 2001of the Regional Trial Court, Branch 86, Taal, Batangas is REINSTATED.  Costs against respondent.

SO ORDERED. 

 LEONARDO A. QUISUMBING

Associate Justice WE CONCUR:    

ANTONIO T. CARPIOAssociate Justice

CONCHITA CARPIO MORALESAssociate Justice

DANTE O. TINGAAssociate Justice

PRESBITERO J. VELASCO, JR.Associate Justice

 

A T T E S T A T I O N 

          I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.    

LEONARDO A. QUISUMBINGAssociate Justice

Chairperson 

 C E R T I F I C A T I O N

           Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.  

  

REYNATO S. PUNOChief Justice

 

FIRST DIVISION

[G.R. No. L-21231. July 30, 1975.]

CONCORDIA LALUAN, Et Al., Petitioners, v. APOLINARIO MALPAYA, MELECIO TAMBOT, BERNARDINO JASMIN, Et Al., Respondents.

Primicias, Regino & Macaraeg, for Petitioners.

Saturnino D. Bautista for Respondents.

SYNOPSIS

In the Court of First Instance, petitioners filed a complaint for the recovery of ownership and possession of certain properties, basing their claim on their alleged right to inherit from Marciana Laluan who died

intestate. They contested the validity of two documents: a Deed of Absolute Sale of Real Property, dated June 26, 1948, involving paraphernal real property of the deceased, who was wife of Malpaya (one of the respondents) who allegedly took advantage of her senility in disposing of the property; and an Absolute

Deed of Sale, dated July 21, 1948, disposing of the entirety of some conjugal property of the said spouses, which was executed by the same respondent who had the right to dispose of only one-half thereof.

The parties entered into a partial stipulation of facts, but several postponements of the scheduled hearings followed. At the hearing on August 1, 1957, where neither respondents nor counsel appeared despite notice

served on them, the court allowed the petitioners to adduce their evidence before the Clerk of Court. Thereafter, the court rendered judgment annulling both documents and declaring the petitioners owners pro-indiviso of the entirety of the property involved in the first document and also owners pro-indiviso of one-half

of the property involved in the second document.

On appeal, the Court of Appeals voided the procedure whereby the court a quo allowed petitioners to present their evidence before the Clerk of Court and therefore, set aside the appealed decision and

remanded the case to the trial court for further proceedings.

The case was brought to the Supreme Court for review. Reversing the Court of Appeals, the Supreme Court upheld the trial court in authorizing the Clerk to receive testimonial evidence of witness. It thus affirmed the

annulment by the trial court of the "Absolute Deed of Sale," but with respect to the "Deed of Absolute Sale" it held that the property involved was not sufficiently identified.

Judgment of the Court of Appeals set aside; judgment of the court a quo insofar as it pertains to the Absolute Deed of Sale affirmed, but insofar as it relates to the Deed of Absolute Sale of real Property is set aside and remanded to the court a quo for new trial, to the end that the identities of the parcels of land in dispute may

be specifically established.

SYLLABUS

1. COURTS; POWERS; TRIAL BY COMMISSIONER; RULE 33 OF THE RULES OF COURT MANDATORY. — Under Rule 33 of the Rules of Court, a trial judge may refer any or all of the issues in a case to a person so

commissioned to act or report thereon and once a case has been formally referred to a commissioner, compliance by the court, the commissioner, and the parties with the rules of conduct set forth in Rule 33

before, during and after the reference proceedings is imperative.

2. ID.; ID.; ID.; APPLICATION; RULE 33 OF THE RULES OF COURTS DOES NOT APPLY WHERE THE CLERK OF COURT IS MERELY DESIGNATED TO RECEIVE EVIDENCE. — The provision of Rule 33 does not apply to a case where the court a quo directed the Clerk of Court to take down the testimony of the witnesses presented and

to mark the documentary evidence proffered on a date previously set for hearing.

3. ID.; ID.; RECEPTION OF EVIDENCE MAY BE DELEGATED TO THE CLERK OF COURT. — There is no law or principle of public policy which prohibits a court in authorizing its Clerk of Court to receive the evidence of a party litigant; after all, the reception of evidence by the Clerk of Court constitutes but a ministerial act the

taking down of the testimony of the witnesses and the marking of the pieces of documentary evidence.

4. ID.; ID.; ID.; CLERK OF COURT EXERCISES MERELY MINISTERIAL POWERS. — The task of receiving evidence is merely ministerial and precludes, on the part of the clerk of court, the exercise of judicial discretion usually

called for when the other party present objects to the questions propounded and to the admission of the documentary evidence proffered.

5. ID.; ID.; ID.; ID.; TRIAL JUDGE TO PERSONALLY RENDER THE DECISION. — The duty to render judgment on the merits of the case rests with the judge who is obliged to personally and directly prepare the decision

based upon the evidence reported.

6. ID.; ID.; ID.; ID.; ID.; AGGRIEVED PARTY ENTITLED TO COMPLETE OPPORTUNITY TO PROTECT HIS RIGHTS. — Where the proceedings before the clerk of court and the judgment rendered based on the evidence

presented in such limited proceedings prejudice the substantial rights of the aggrieved party, the latter should be granted a complete opportunity to thresh out his case in court.

7. ACTIONS; SUBJECT MATTER; DUTY TO ESTABLISH THE IDENTITY OF THE SUBJECT MATTER OF THE ACTION RESTS UPON THE CLAIMANT. — In order to maintain an action to recover ownership, the person who claims a

better right to the property must prove not only his ownership thereof but also the identity of the same.

8. ID.; ID.; ID.; COURT BOUND TO ASCERTAIN THE IDENTITY OF THE SUBJECT MATTER OF THE ACTION. — Where doubt and uncertainty exist as to the identity of the land in dispute, the court should resolve the

question by recourse to the pleadings and record as well as to the extrinsic evidence, oral or written. If the record does not contain any indicium to show and identify with absolute certainty the subject matter to the

action, the prudent course open for the court is to conduct an investigation either in the form of a hearing or an ocular inspection or both.

9. ID.; ID.; ID.; ID.; NEW TRIAL MUST BE GRANTED TO ASCERTAIN THE IDENTITY OF THE SUBJECT MATTER OF THE ACTION. — Failure to identify the property in dispute is a sufficient ground for new trial on the matter;

hence, the court erred in declaring the property subject of the Deed of Absolute of Real Property as paraphernal property of the late Marciana Laluan and in nullifying the said deed of absolute sale of real

property on the basis of the deed of donation propter nuptias because the deed of sale treats of a piece of land entirely different and distinct form the parcels described in the deed of donation and the record does

not show any proof identify with absolute certainly the parcels of land described in both documents.

10. HUSBAND AND WIFE; PROPERTY RELATIONS; PRESUMPTION IN FAVOR OF CONJUGAL PARTNERSHIP IN THE ABSENCE OF PROOF TO THE CONTRARY. — Under Article 1407 of the Civil Code of 1889 (Art. 160, New Civil Code), the property of the spouses shall be deemed partnership property in the absence of proof that it

belongs exclusively to the husband or to the wife.

11. ID.; ID.; ID.; PROOF OF THE ACQUISITION OF THE PROPERTY DURING THE MARRIAGE SUFFICIENT FOR THE LEGAL PRESUMPTION TO OPERATE. — Where it was proven that the spouses acquired a parcel of land during the existence of the marriage, said property is deemed to pertain to the conjugal partnership of the spouses,

following the rule that proof of acquisition of the property during the marriage is sufficient to render the statutory presumption operative.

12. SUCCESSION; SURVIVING SPOUSE AND COLLATERAL RELATIONS; LAWS GOVERNING; DECEDENT’S ESTATE SHALL BE GOVERNED BY THE LAW IN FORCE AT THE TIME OF HIS DEATH. — Pursuant to Article 2263

of the New Civil Code, the rights of collateral relatives and the surviving spouse to the property left by the deceased who died on July 17, 1948 or before the effectivity of the New Civil Code shall be governed by

Articles 837 and 953 of the Old Civil Code which was the law then in force. Consequently, the court did not err in declaring the deed of absolute sale null and void as to the one-half portion of the land described

therein which legally pertains to the collateral relatives as owners pro indiviso thereof, and in ordering the purchasers of said land to pay the collateral relatives, by way of damages, the value of the produce which said relatives failed to realize from the half portion of the land until the possession of said half portion shall

have been delivered to them.

D E C I S I O N

CASTRO, J.:

In 1950 the Laluans, 1 the Laguits 2 and the Sorianos 3 (herein after referred to as the petitioners) filed with the Court of First Instance of Pangasinan a complaint against Apolinario Malpaya, Melecio Tambot and Bernardino Jasmin (hereinafter referred to as the respondents) for recovery of ownership and possession of two parcels of land. The petitioners seek a declaration the they are the owners pro indiviso of

"A PARCEL OF RICELAND, situated in the barrio of Inoman, Pozorrubio, Pangasinan, Philippines . . . containing an area of 1 hectare nine hundred seventy one (10,971) square meters, more or less; bounded on the N. by Nicolas Estares; on the E. by Zanja; on the S. by Estero Inoman and on W. by Aniceta Marquez; . . .," 

and the owners pro indiviso of one-half of

"A PARCEL OF RICELAND AND CORNLAND, situated in the barrio of Inoman, Pozorrubio, Pangasinan, . . . containing an area of (31,548) square meters, more or less, bounded on then. by Resendo Serran; E. by Esteban Malapaya; S. by Creek that surround it; . . ." cralaw virtua1aw library

They base their claim on their alleged right to inherit, by legal succession, from Marciana Laluan (the respondent Malapaya’s wife) who died intestate on July 17, 1948 and without any children.

The first parcel of land they alleged as paraphernal property of the late Marciana Laluan. They claim that the respondent Malapaya, taking advantage of the senility of his wife, sold the land to the respondent Tambot, as evidenced by the "Deed of Absolute Sale of Real Property" dated June 26, 1948. The second parcel of land they allege as conjugal property of the spouses Malapaya and Laluan, and charge that the respondent Malapaya, with right to sell only one-half thereof, sold the whole property, four days after the death of his wife, to the respondents Tambot and Jasmin, as evidence by the "Absolute Deed of Sale" dated July 21, 1948.

The respondents filed their answer, 4 denying the allegations of the complaint and claiming that the parcels of land belonged to the respondent Malpaya as his exclusive property. The respondents Tambot and Jasmin further aver that the respondent Malpaya had the "perfect legal right" to dispose of the said parcels of land and that they bought the properties in good faith, unaware of any flaw in the title of their vendor.

To expedite the proceedings, the parties entered into a partial stipulation of facts at the hearings of August 31 and October 25, 1950. The petitioners then proceeded to adduce their evidence.

Several postponements of the scheduled hearings followed. Then, at the hearing scheduled on August 1, 1957 neither the respondents nor their counsel appeared, notwithstanding due and proper notice served on them. Nor did they file any motion for postponement. The petitioners thus moved for leave to continue with the presentation of their evidence. This the court a quo granted, allowing the petitioners to adduce their evidence before the clerk of court.

On September 23, 1957 the court a quo rendered judgment declaring null and void the "Deed of Absolute Sale of Real Property" dated June 26, 1948 as well the "Absolute Deed of Sale" dated July 21, 1948, except as regards the one-half portion of the land described in the latter document which belonged to the respondent Malpaya. With respect to the parcel of land covered by the "Deed of Absolute Sale of Real Property," the court a quo declared the petitioners owners pro indiviso of the entirety thereof and ordered the respondent Tambot not only to deliver the possession of the land to them but also to pay them, by way of damages, the amount of P750 — the value of the crops which the petitioners failed to realize for the last nine years from the land — plus P500 annually from date until possession thereof shall have been delivered to them. With respect to the parcel of land subject of the "Absolute Deed of Sale," the court a quo likewise declared the petitioners owners pro indiviso of one-half thereof and ordered the respondents Tambot and Jasmin to deliver the possession of the half-portion to the petitioners, as well as to pay them, in damages, the sum of P1,343.75 — the value of the produce which the petitioners failed to realize for the last nine years from the half-portion of the land — plus P687.50 annually from date until possession thereof shall have been delivered to them.

On October 7, 1957 the respondents Tambot and Jasmin filed their Mocion de Reconsideracion. On October 18, 1957 the court a quo, finding the grounds invoked by the respondents in their motion without merit, denied the same.

The respondents then appealed to the Court of Appeals (hereinafter referred to as the respondent Court). On January 31, 1963 the respondent Court rendered judgment setting aside the appealed decision and entered another remanding the case to the court a quo for further proceedings. The respondent Court voided the procedure whereby, at the continuation of the hearing of the case on August 1, 1957, the court a quo, in the absence of the respondents and their counsel, allowed the petitioners to present their evidence before the clerk of court.

In due time, the petitioners, through a motion for reconsideration, asked the respondent Court to re-examine its decision. This motion, however, the respondent Court denied.

In the instant petition for certiorari, the petitioners pray for the reversal of the decision of the respondent Court as well its resolution denying their motion for reconsideration, and ask that judgment be rendered affirming in toto the decision of the court a quo dated September 23, 1957.

The petitioners and the respondents point to what they believe is the sole question for resolution; whether or not the reception by the clerk of court of the petitioners’ evidence, in the absence of the respondents and their counsel, constitutes a prejudicial error that vitiated the proceedings.

The petitioners argue that a trial court has authority to designate its clerk of court to receive the evidence of the party present when the other party fails to appear. In receiving evidence, the petitioners continue, the clerk of court merely performs a ministerial task. The ministerial nature of such a task allows the clerk of court to dispense with the procedural steps 5 prescribed by Rule 33 of the Rules of Court.

The respondents, on the other hand, contend that the court a quo arrogated unto itself the power, otherwise denied it, to designate its clerk of court to receive the petitioners’ evidence. No provision of the Rules of Court, according to them, empowers a trial court to authorize its clerk of court to receive the evidence of a party litigant; only when the clerk of court becomes a commissioner, by appointment pursuant to Rule 33, has he the authority to so receive the evidence of a party litigant, and even in such a situation Rule 33 requires the clerk of court to observe the procedural steps therein prescribed.

The provisions of Rule 33 of the Rules of Court invoked by both parties properly relate to the reference by a court of any or all of the issues in a case to a person so commissioned to act or report thereon. These provisions explicitly spell out the rules governing the conduct of the court, the commissioner, and the parties before, during, and after the reference proceedings. Compliance with these rules of conduct becomes imperative only when the court formally orders a reference of the case to a commissioner. Strictly speaking then, the provisions of Rule 33 find no application to the case at bar where the court a quo merely directed the clerk of court to take down the testimony of the witnesses 6 presented and to mark the documentary evidence 7 proffered on a date previously set for hearing.

No provision of law or principle of public policy prohibits a court from authorizing its clerk of court to receive

the evidence of a party litigant. After all, the reception of evidence by the clerk of court constitutes but a ministerial task — the taking down of the testimony of the witnesses and the marking of the pieces of documentary evidence, if any, adduced by the party present. This task of receiving evidence precludes, on the part of the clerk of court, the exercise of judicial discretion usually called for when the other party who is present objects to questions propounded and to the admission of the documentary evidence proffered. 8 More importantly, the duty to render judgment on the merits of the case still rests with the judge who is obliged to personally and directly prepare the decision based upon the evidence reported. 9 

But where the proceedings before the clerk of court and the concomitant result thereof, i.e., the judgment rendered by the court based on the evidence presented in such limited proceedings, prejudice the substantial rights of the aggrieved party, then there exists sufficient justification to grant the latter complete opportunity to thresh out his case in court.

1. Anent the parcel of land subject of the "Deed of Absolute Sale of Real Property," the court a quo, in its decision dated September 23, 1957, declared it as the paraphernal property of the deceased Marciana Laluan. In so doing, the court a quo relied mainly on the documents — the deed of donation propter nuptias and the translation thereof in English — presented by the petitioners before the clerk of court at the hearing on August 1, 1957. However, the respondents contend — and this the respondent court took significant note of in its resolution dated March 30, 1963 — that the laud described in the "Deed of Absolute Sale of Real Property" is not any of those set forth in the deed of donation.

The "Deed of Absolute Sale of Real Property" describes the land subject thereof as follows: jgc:chanrobles.com.ph

"A parcel of riceland, together with all the improvements existing thereon situated in the Barrio of Inoman, Pozorrubio, Pangasinan, Philippines, . . . containing an area of 1 hectare nine hundred seventy one (10,971) square meters, more or less; bounded on the N. by Nicolas Estaris; on the E. by Zanja; on the S. by Estero Inoman and on the W. by Aniceta Marquez; the boundaries consists of visible dikes that surround it; declared under Tax No. 20006 in the name of the Vendor and assessed at P330.00 of the current year of Pozorrubio, Pangasinan; said land is not registered under Act No. 496 nor under the Spanish Mortgage Law." 10 

On the other hand, the deed of donation propter nuptias treats of three parcels of land in this manner.

"First: A parcel of riceland situated in Paldit, municipality of Pozorrubio, Pangasinan, the measurement and boundaries on all sides could be seen from the sketch at the back hereof, this parcel of land is given in lieu of jewelry, whose value is TEN (P10.00) PESOS.

"Second: Another parcel of riceland situated in the same place mentioned above, also its measurements and boundaries on all sides could be seen from the sketch at the back hereof, and valued at THIRTY (P30.00) PESOS."cralaw virtua1aw library

". . . a parcel of riceland . . . situated in Inmatotong, this municipality, its measurements in brazas and boundaries on all sides could be seen on the sketch herein below, and this said parcel of land is valued at TEN (P10.00) PESOS."cralaw virtua1aw library

The sketch appearing on the deed of donation covers three parcels of land: the first parcel, 63 X 52 brazas, 11 bounded on the north by Jacinto Malpaya, on the west by a payas, and on the south and east by Pedro Malpaya; the second parcel, 30 X 63 brazas, bounded on the north by Tomas Tollao, on the west by Jacinto Laluan, on the south by a colos, and on the east by Pedro Malpaya; and the third parcel, 52 X 23 brazas, bounded on the north and west by Pedro Malpaya, on the south by Roman Gramata, and on the east by Eustaquio Marquez. All of these three parcels have stated metes and bounds quite different from those of the land covered by the "Deed of Absolute Sale of Real Property." the location too of the latter land differs from those of the parcels described in the deed of donation. While the land subject of the "Deed of Absolute Sale of Real Property" lies in Inoman, Pozorrubio, Pangasinan, the parcels included in the deed of donation lie either in Paldit or in Inmatotong, both also in Pozorrubio, Pangasinan. At first sight also appears the marked variance between the respective areas of those parcels described in the deed of donation and the parcel subject of the "Deed of Absolute Sale of Real Property." cralaw virtua1aw library

Indeed, there arises the possibility that in the interim of fifty six years from February 15, 1892 (the date of the deed of donation propter nuptias) to June 26, 1948 (the date of the "Deed of Absolute Sale of Real Property’), the parcels of land contiguous to those described in the deed of donation passed in ownership from one hand to another, or changes in the man-made or natural boundaries used to indicate the confines of the parcels set forth in the said document occurred. This could very well explain the discrepancies between the names of the boundary owners of the piece of land described in the "Deed of Absolute Sale of Real Property" and the names of the adjacent owners of the parcels subject of the deed of donation as well as the absence of any mention of the payas and colos in the later "Deed of Absolute Sale of Real Property."

In addition, the variance between the location of the land described in the "Deed of Absolute Sale of Real Property" and those of the parcels set forth in the deed of donation could reasonably be due to the creation of new barrios in the municipality of Pozorrubio, Pangasinan, or the alteration of the boundaries of the barrios therein.

However, the apparent difference between the area of the land described in the "Deed of Absolute Sale of Real Property" and the areas of the parcels included in the deed of donation propter nuptias should be fully and properly explained. The record shows that the petitioners neither offered nor attempted to offer any evidence indicating that the land sold by the respondent Malpaya to his co-respondent Tambot corresponds with any of the three parcels described in the deed of donation. The petitioners failed to specify precisely which of the three parcels — its location, area, and contiguous owners — subject of the deed of donation constitutes the very land delimited in the "Deed of Absolute Sale of Real Property." cralaw virtua1aw library

All these give rise to a grave doubt as to the specific identity of one of the parcels of land in dispute which the court a quo neither noticed nor considered notwithstanding the obvious fact that the location, area, and boundaries of the land covered by the "Deed of Absolute Sale of Real Property" do not coincide with those of any of the parcels described in the deed of donation propter nuptias.

The invariable applicable rule 12 is to the effect that in order to maintain an action to recover ownership, the person who claims that he has a better right to the property must prove not only his ownership of the property claimed but also the identity thereof. The party who desires to recover must fix the identity of the land he claims. 13 And where doubt and uncertainty exist as to the identity of the land claimed, a court should resolve the question by recourse to the pleadings and the record as well as to extrinsic evidence, oral or written.

Absent, therefore, any indicium in the record to show and identify with absolute certainty any of the three parcels of land included in the deed of donation propter nuptias as the land described in the "Deed of Absolute Sale of Real Property," the prudent course open obviously consists in an investigation by the court a quo, either in the form of a hearing or an ocular inspection, or both, to enable it to know positively the land in litigation. If, indeed, the "Deed of Absolute Sale of Real Property" treats of a piece of land entirely different and distinct from the parcels described in the deed of donation propter nuptias, and considering that the court a quo, in its decision dated September 23, 1957, relied mainly on the said deed of donation in declaring the land subject of the "Deed of Absolute Sale of Real Property" as the paraphernal property of the late Marciana Laluan and in nullifying the latter document, then there exists sufficient ground to remand the case to the court a quo for a new trial on the matter.

2. Anent the parcel of land subject of the "Absolute Deed of Sale," the court a quo, in its decision dated September 23, 1957, found and declared it as the conjugal property of the spouses Laluan and Malpaya. In so doing, the court a quo relied heavily on the presumption established by article 1407 14 of the Civil Code of 1889 that" [a] 11 the property of the spouses shall be deemed partnership property in the absence of proof that it belongs exclusively to the husband or to the wife." cralaw virtua1aw library

It needs no emphasis to point out that the court a quo committed no error in declaring that the parcel of land subject of the "Absolute Deed of Sale" belongs to the conjugal partnership of the spouses Laluan and Malpaya. Indeed, the spouses Laluan and Malpaya acquired the said parcel of land from Eustaquio Marquez "sometime in 1912" or, specifically, during the marriage. Following the rule then that proof of acquisition of the property in dispute during the marriage suffices to render the statutory presumption operative, 15 it seems clear enough that the parcel covered by the "Absolute Deed of Sale" pertains to the conjugal partnership of the spouses Laluan and Malpaya.

Likewise, the court a quo committed no error in declaring the "Absolute Deed of Sale" null and void as to the one-half portion of the land described therein which belonged to Laluan, spouse of the respondent Malpaya; in declaring the petitioners the owners pro indiviso of one-half of the land subject of the said "Absolute Deed of Sale;" and in ordering the respondents Tambot and Jasmin to deliver the possession of the said half-portion to the petitioners. The court a quo also correctly cited and applied the provisions of articles 953 16 and 837 17 of the Civil Code of 1889 which, pursuant to article 2263 18 of the new Civil Code, govern the rights of the petitioners and the respondent Malpaya to the property left by Marciana Laluan who died on July 17, 1948 or before the effectivity of the new code. Consequently, the court a quo correctly ordered the respondents Tambot and Jasmin to pay to the petitioners, by way of damages, the amount of P1,343.75 which is the value of the produce which the said petitioners failed to realize for nine years from the half-portion of the land subject of the "Absolute Deed of Sale" - plus the sum of P687.50 annually from September 23, 1957 until possession of the said half-portion of land shall have been delivered to them.

ACCORDINGLY, (1) the judgment of the Court of Appeals dated January 31, 1963 and its resolution dated March 30, 1963 are set aside; (2) the judgment of the court a quo dated September 23, 1957, insofar as it

pertains to the "Absolute Deed of Sale," is hereby affirmed; and (3) the judgment of the court a quo of the same date, insofar as it relates to the "Deed of Absolute Sale of Real Property," is set aside, and the case (civil case 11219) is hereby remanded to the court a quo for a new trial, to the end that the identities of the parcels of land in dispute may be specifically established. At the new trial, it will not be necessary to retake evidence already taken, but the parties shall be afforded opportunity to present such evidence as they may deem relevant to the particular question raised herein. No costs.

Makasiar, Esguerra, Muñoz Palma and Martin, JJ., concur.

Teehankee, J., is on leave.

Laluan v Malpaya65 SCRA 494 July 30, 1975

Facts:Petitioners Laluans, the Laguits, and the Sorianos a complaint against Apolinario Malpaya,Melecio Tambot and Bernardino Jasmin for recovery of ownership and possession of two parcels of land. They base their claim on their alleged right to inherit, by legal succession, from Marciana Laluan who died intestate and without any children.

Issue:Can they recover ownership over said land?

Ruling:In order to maintain an action to recover ownership, the person who claims that he has a better right to the property must prove not only his ownership of the property claimed but also the identity thereof. The party who desires to recover must fix the identity of the land he claims. Article 434 which states : “In an action to recover, the property must be identified, and the plaintiff must rely on the strength of his title and not on the weakness of the defendant’s claim.

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

 

G.R. No. L-22006 July 28, 1975

BASILIO PEREZ and PETRA MONTALBO, petitioners, vs.NICOLAS MENDOZA, MARGARITA MACALALAD and the HONORABLE COURT OF APPEALS, respondents.

Pedro T. Panganiban for petitioners.

Julio D. Enriquez, Sr. for respondents.

 

MUNOZ PALMA, J.:

Civil Case 689 of the Court of First Instance of Batangas was an action to quiet title over a piece of land filed on March 20, 1959, by spouses Basilio Perez and Petra Montalbo with spouses Nicolas Mendoza and Margarita Macalalad as defendants. According to the complaint, the land in controversy is located in barrio Dagatan, municipality of Taysan, Batangas, with an area of approximately 4,765 sq. meters, declared for taxation purposes in the name of the "Heirs of Estanislao Montalbo", and is "bounded on the north by a school site, on the east by Calixto Flores, on the south by a creek, and on the west by a creek and the land of Gregorio Mendoza." On the basis of evidence adduced by the parties, the trial court then presided by Hon. Lorenzo Relova rendered judgment on February 19, 1962, dismissing the complaint and declaring the spouses Mendoza "to have a better right to the property in question." 1

Spouses Perez elevated the Relova decision to the Court of Appeals which, however, affirmed in toto the findings of the court a quo, and declared that "upon the evidence it has been shown by a great preponderance that the land in question belongs to the defendants." 2

The case is now before Us on a petition for certiorari filed by spouses Perez.

The findings of fact both of the trial court and the Court of Appeals may be briefly summarized as follows:

The litigated parcel of land was originally part of a bigger tract owned by Estanislao Montalbo. When Estanislao died in 1918, his properties passed on to his children Petra, Felisa, and Pedro all surnamed Montalbo, and because Pedro died single the two women remained as the only heirs. By

mutual agreement Petra and Felisa divided between themselves the lands of their father and the parcel of which the litigated land was a part was assigned to Felisa. Sometime in 1922 Felisa exchanged the above-mentioned parcel with a land belonging to her aunt. Andrea Montalbo, a sister of her father. The reason for the exchange was that Andrea wanted to donate a piece of land to the municipality for use as a school site and the land of Felisa was what the municipality preferred as it was adjacent to other properties of the municipality. (Exh. 5 for defendants Mendoza) Upon her acquisition of Felisa's aforementioned land, Andrea donated to the municipality the northern portion thereof which constituted almost one-half of the entire parcel, and since then that portion was declared for taxation purposes by the municipality together with its adjoining properties (Exhs. 6, 6-A, 6-B).1äwphï1.ñët In 1927 the remainder of the lot was given by Andrea Montalbo to her daughter Margarita Macalalad on the occasion of her marriage to Nicolas Mendoza, and from the time of their marriage the couple possessed the said property. That donation was confirmed subsequently in a public instrument dated August 15, 1951 (Exh. 2 for the Mendozas). Nicolas Mendoza sought to transfer the tax declaration of the property to his name and of his wife and for that purpose he submitted a deed of exchange of property dated January 14, 1922, allegedly executed by Felisa Montalbo and Andrea Montalbo in the presence of the municipal secretary Rafael Manahan (Exh. 5). When Basilio Perez came to know about the supposed deed of exchange, he had it investigated and upon discovering that the signature of Rafael Manahan appearing on the document was forged, he filed a criminal complaint before the Fiscal's office which led to an accusation for falsification of private document against Andrea Montalbo and Nicolas Mendoza. Only Nicolas Mendoza was arraigned and tried and was convicted by the Court of First Instance of Batangas, but on appeal he was acquitted by the Court of Appeals for insufficiency of evidence to show that he participated in affixing the signature of Rafael Manahan or that he was aware of the falsity of the document in question when he presented it to the tax assessor's office. 3 Notwithstanding the forged signature of Rafael Manahan on the document Exhibit 5, there is sufficient evidence to prove that an exchange of property did in fact occur in 1922 between Andrea and Felisa Montalbo, and that Felisa's land passed on to Andrea who in turn gave part of it to the municipality and part to her daughter, Margarita; hence, the decision in favor of the spouses Mendoza.

On the other hand, petitioners contend that the disputed property was inherited by Petra and Felisa Montalbo from their father Estanislao who died in 1918 and since that date the two sisters were in possession of said land. In 1934 a deed of partition of the various properties of Estanislao was executed between Petra and the heirs of Felisa, and the land in question was divided equally, between them; among those who signed as witnesses to that agreement was Andrea Montalbo(Exh. D for petitioners). In 1952 Felisa's husband, Jose Ortega, and children sold their one-half share to spouses Petra Montalbo and Basilio Perez, now petitioners, but the deed of sale was lost a year after. Sometime in 1946 petitioners leased the property to the Mendozas and when the lease expired in 1951 they demanded for the return of the land but the Mendozas refused and so petitioners had to file an ejectment suit before the justice of the peace court of Taysan which was still pending at the time of the trial of the civil case in 1960. (tsn. witness Basilio Perez, December 15, 1960, pp. 16-34)

For not giving credit to the foregoing evidence, petitioners now assail the adverse decision of respondent court on four assigned errors.

1. Petitioners contend that respondent court erred in considering the criminal case for falsification res adjudicataon the matter of ownership of the land in litigation when the "question of ownership was not actually and directly in issue in the criminal case and the latter was not the proper vehicle for the determination of the ownership of the land." (p. 9, petitioners brief) Petitioners refer to portions in the decision of respondent court, viz:

The land in question, together with that portion that was acquired by the municipality of Taysan, the identity of which is admitted by the parties, belonged to Felisa Montalbo, as held in the decision of the Court of Appeals, thus — "The said parcel of

land previously belonged to Felisa Montalbo (married to Jose Ortega), who inherited it from her deceased father, the aforecited Estanislao Montalbo;", and the land in question was donated propter nuptias by Andrea Montalbo to Margarita Macalalad and Nicolas Mendoza, the defendants, (Margarita Macalalad is the daughter of Andrea Montalbo) on the occasion of their marriage on February 27, 1927, as found and held in the decision of the Court of Appeals, thus — "and this land was acquired by the donor (Andrea Montalbo) by means of a barter with her own parcel of land planted with bamboos and mango trees"

Upon the basis of the findings of fact and conclusion arrived at in the decision of the Court of Appeals, it clearly appears that although the document of exchange of the lands was found to be falsified, nevertheless the Court found upon the facts as demonstrated by the evidence that the land in question "previously belonged to Felisa Montalbo (married to Jose Ortega), who inherited it from her deceased father, the aforesaid Estanislao Montalbo ..."; that said land was donated propter nuptias by Andrea Montalbo to the defendants on the occasion of their marriage on February 27, 1927; and that "this land was acquired by the donor by means of a barter with her own parcel of land planted with bamboos and mango trees". From the context of the decision the natural and logical inference is that factually the exchange of the lands had been consummated.... (pp. 6-7, CA decision at pp. 20-21, rollo; emphasis supplied to indicate disputed statements)

Undoubtedly, there is merit to the contention of petitioners that the pronouncements or findings of fact made by the Court of Appeals in the criminal case concerning the possession and ownership of the land now in litigation in the civil case, do not constitute the law on the matter and cannot be taken or adopted as a basis for deciding the question of ownership of said land in this civil case. Since there is no identity of parties in the two cases — the petitioners here not being parties in the criminal case — and the object or subject matter in the criminal prosecution is different, the latter being concerned with the guilt or innocence of accused Nicolas Mendoza for falsification of private document, it follows that the judgment in the criminal action cannot be used as evidence in the civil case where the issue is ownership of a piece of land. It is the rule that the plea of res judicata generally cannot be interposed except where the parties, facts, and questions are the same, 4 hence, the judgment in a criminal case cannot be pleaded as res judicata in a civil action.  5

But whatever error was committed by respondent court in this regard, the same is not sufficient to nullify the appealed decision.

Analyzing the decision of respondent court. We see that the latter made its own appraisal and evaluation of the evidence existing in the record relative to the possession and ownership of the land in question. Thus it said that the conclusions arrived at by the Court of Appeals in the criminal case to wit(1) that there was an exchange of lands consummated between Andrea and Felisa and (2) that the exchanged land was later donated by Andrea to her daughter Margarita in 1927, "can hardly be doubted if we take account of the undisputed fact that the defendants have been in possession of the land since 1927, and the plaintiffs (meaning spouses Perez) have not attempted to disturb defendants' possession of the land until 1952 when said plaintiffs filed an action of unlawful detainer against the defendants." (p. 7 of appealed decision at p. 21, SC rollo; emphasis supplied) Continuing, respondent court expounded:

Contrary to the allegation in the complaint — "That plaintiffs were in possession of the land prior and up to January, 1946, when the same was leased to the defendants ...", and the testimony of Basilio Perez to the same tenor, the evidence has conclusively shown that the defendants have been in continuous possession of the

land since 1927 to the present time, and they have built a house on the land in 1928 where they have resided and lived to the present, as testified to by the defendant Mendoza, ....

The plaintiffs have contended, however, with the support of the testimony of Basilio Perez, that the possession of the defendants since 1946 was that of a mere lessee of the land. On this matter, the trial court said, "the records do not show any documentary evidence to support such contention. Nor is any document, say receipts of payment of rentals presented to bolster their theory. On the contrary their averment has been strongly denied by the defendants and the records show that it was only in 1952 that a civil action was instituted by the plaintiffs against the defendants in the Justice of the Peace Court of Taysan, Batangas, for detainer and damages", and said allegation of possession of the defendants as lessees of the land "is not supported by positive and convincing evidence". We find no reason to disagree with the foregoing findings of fact and conclusion of the trial court because the same is supported by the preponderance of evidence, and the plaintiffs have not pointed to us any fact of significance or influence which have been disregarded by the court, other than the testimony of Basilio Perez who testified about the supposed contract of lease. (pp. 21-22, 23, ibid.; emphasis supplied)

Digging further into the evidence of herein petitioners, respondent court found for itself that the agreement of partition dated May 27, 1934, Exhibit D, is not incontrovertible proof that in 1934 the litigated property belonged in common to Petra and the heirs of Felisa Montalbo both of whom may have been guided by the fact that the property was still declared for taxation purposes in the name of Estanislao Montalbo, and that the document of partition "did not overcome the evidence on record that Andrea Montalbo became the owner of the land, and that since 1927 the defendants have been in continuous possession of the land, openly, adversely and in the concept of owners thereby acquiring ownership of the land through acquisitive prescription." (p. 10 of CA decision at p. 24, SC rollo)

Independently therefore of the pronouncements of the Court of Appeals in the criminal case, respondent court examined the evidence in this civil case and made its own findings of fact on the basis of which it affirmed the decision of the trial court.

We could have stopped here and resolved this petition under well-entrenched precepts in Philippine jurisprudence that findings of fact of the Court of Appeals are as a rule conclusive and binding upon this Court; 6 nonetheless, to set our mind at rest that the conclusions of respondent court were not grounded on speculation, surmises or conjectures, 7We went over the evidence before Us.

Certain salient facts strongly support the claim of respondents Mendoza over the property in dispute:

First, the northern boundary of the land in controversy is undisputably a school site which originally was part of a bigger tract belonging to Estanislao Montalbo. This is admitted by petitioner Basilio Perez who to a question propounded by his counsel, Atty. Panganiban, declared:

Mr. Panganiban: (Counsel of petitioners)

Q. According to these tax declarations which you said covers the land in question, the boundaries on the north, school site; on the east, land of Calixto Flores; on the south, estero; and on the west, estero and Gregoria Mendoza, why is it that there is a discrepancy?

A. Because from the whole parcel of land a portion was taken for the school site, and that which remains now is the land in question, sir. (tsn December 15, 1960, pp. 22-23)

No explanation however was offered by Perez as to how that portion became a school site. On the other hand, there is evidence of respondent Mendoza that because Andrea Montalbo wanted to donate a piece of land to be used as a school site and the municipality preferred the location of the land inherited by Felisa from her father, the two women exchanged lands after which Andrea gave one-half of the property to the municipality while the remaining portion which is the land now in litigation was donated propter nuptias to her daughter Margarita way back in 1927. (tsn October 24, 1961, pp. 14-18) This donation of Andrea was not disproved by any evidence of petitioners. On the part of respondents Mendoza, their documentary evidence, Exhibits 6, 6-A and 6-B, show that the municipality of Taysan declared the donated property in its name as early as July, 1925, which supports respondents' claim that the exchange of properties between Andrea and Felisa Montalbo took place sometime in 1922.

Second, the provincial authorities authorities dealt with the Mendozas for the widening of the provincial road which traverses the land in question. Nicolas Mendoza testified that the land covered by the complaint actually consists of two lots which he described in his sketch, Exhibit 1, with letters "A" and "B" respectively, separated by a provincial road leading to the municipality of Lobo; that lot "A" which is the bigger parcel is the one donated to his wife, Margarita, by Andrea Montalbo on the occasion of their marriage in 1927 (Exh. 2); while lot "B" was bought from Donata Mendoza in 1951 as shown by the deed of sale, Exhibit 7; that sometime in 1937-38, the province widened the provincial road traversing the two lots, and he and his wife were approached by the provincial authorities more particularly, Engineer Ramirez, for them to give without compensation from lot "A" a stretch of land of one meter in width to widen said road, and they agreed. At that time Donata Mendoza still owned lot "B" and she was also asked to give part of her land for the road but she was paid for the value of the plants destroyed in the process.(tsn October 24, 1961, pp. 32-34) For his part, petitioner Perez admitted during the cross-examination conducted by the opposite counsel, Atty. Julio Enriquez, that the provincial authorities did not deal with him at all during the widening of that particular road. (tsn September 25, 1961, p. 34) This is of marked significance, because if it were true as claimed by petitioners that they were in possession of the property since the death of Estanislao Montalbo in 1918 or even after the deed of partition in 1934, they would have been the persons approached by the authorities for the widening of the road. The fact that the Mendozas were the ones who gave away part of the land for the widening of the Lobo road shows that they were in possession of the property and were living there at the time.

Third, respondents Mendoza have been in possession of the property since 1927 in concept of owners thereof. We have the testimony of respondent Nicolas Mendoza that after the land was donated to his wife in 1927 they built a house on it and lived there continuously, witness referring particularly to what he described as lot "A" in his sketch Exhibit 1. (tsn October 24, 1961, pp. 7, .30-31) Respondent's testimony was found both by the trial and appellate courts credible because (1) petitioner Basilio Perez himself admitted during cross-examination that even before the last world war the Mendozas had constructed a house on the land in litigation (tsn September 25, 1971, pp. 37-39; see Exh. E-3) which admission disproves the allegation in the complaint and Perez' testimony that it was only in 1946 when the Mendozas occupied the property as lessees; (2) the testimony of Nicolas Mendoza was corroborated by witness Adriano Gonzales, a retired justice of the peace of Taysan, Batangas, who declared that he knew the Mendozas since 1937 and he saw them living on the land in question and they have not changed residence at all since he had known them (tsn December 6, 1961, pp. 5-6); and (3) the respondents Mendoza were the ones who were living on the property and not the petitioners at the time the provincial government in 1937 widened the Lobo road which crosses said land.

The court a quo and the respondent appellate court did not err when they upheld the claim of ownership of the Mendozas principally on the ground that the latter were in actual possession of the property since 1927 and were sought to be dispossessed by petitioners herein only in 1952 when an ejectment suit was filed against them.

Possession is an indicium of ownership of the thing possessed and to the possessor goes the presumption that he holds the thing under a claim of ownership. 8 Article 433 of the Civil Code provides that "(A)ctual possession under claim of ownership raises a disputable presumption of ownership. The true owner must resort to judicial process for the recovery of the property." In Chan vs. Court of Appeals, et al., L-27488, June 30, 1970, 33 SCRA 737, this Court upheld the finding of the Court of Appeals that the litigated property belonged to the private respondents therein based on their possession of the property, not only because such findings of fact of the appellate court are conclusive and binding on this Court but because the conclusion is in accordance with Articles 433 and 531 of the Civil Code. 9

As we have here conflicting claims of possession by the parties over the land in controversy and because the fact of possession cannot be recognized at the same time in two different personalities except in cases of co-possession, the present possessor is to be preferred pursuant to Article 538 of the Civil Code which We quote:

Possession as a fact cannot be recognized at the same time in two different personalities except in the cases of co-possession. Should a question arise regarding the fact of possession, the present possessor shall be preferred; if there are two possessors, the one longer in possession; if the dates of the possession are the same, the one who presents a title; and if all these conditions are equal, the thing shall be placed in judicial deposit pending determination of its possession or ownership through proper proceedings." 10

The pretension of petitioners that the possession of the Mendozas is that of a mere lessee was not believed by the trial judge and the appellate court not only because of the absence of any written or oral evidence on the matter other than the bare testimony of petitioner Basilio Perez, but also due to the circumstances present in the case which We indicated and enumerated at pages 7 to 9 of this decision. In fine, it is a fact that the Mendozas are presently in possession of the property and the presumption of ownership in their favor has not been successfully rebutted by evidence that they are mere lessees of the land in their possession as claimed by petitioners.

2. In their second assigned error, petitioners contend that respondent court should not have given weight to the evidence of respondent Mendoza because the latter's Exhibit 5 was proven to be a falsified document.

To recall, Exhibit 5 is the alleged deed of exchange or barter of lands between Andrea and Felisa Montalbo dated January 14, 1922. On this point, petitioners overlook the fact that Exhibit 5 was made the basis of a criminal accusation of falsification of private document solely on the allegation that the signature of Rafael Manahan, the person before whom the parties to the document allegedly appeared, was not his. There was no finding in that criminal case as per decision rendered therein that the barter or exchange of lands between Andrea and Felisa Montalbo did not in effect take place. On the contrary, what appears in said decision offered by petitioners as their Exhibit J are the following findings of the Court of Appeals, viz: that the land donated by Andrea Montalbo to her daughter Margarita Macalalad "was acquired by the donor by means of a barter with her own parcel of land planted with bamboos and mango trees"; that while it is true that because of this presentation of the falsified document appellant (now respondent Nicolas Mendoza) was able to secure the declaration of the property donated in his name, no criminal liability should be imposed upon him in the absence of any evidence that he presented said exhibit with the knowledge that it was forged

"especially if we take into consideration the fact that he and his wife were and are still in possession of the land donated since 1927"; that in fact, the color and appearance of the document in question show that it is not a new document but an old one thus confirming Mendoza's theory that it was executed in or about the year 1922 as appearing in the document or five years before his marriage. (pp. 1, 5, 6 of Exh. J, folder of exhibits) Thus, if the document Exhibit 5 was held to be forged, it was simply because the municipal secretary, Rafael Manahan, did not sign it and not for any other reason. What is material and relevant to the civil case is that both the trial court and respondent appellate court found for a fact that there was an exchange of lands between Andrea and Felisa Montalbo on the basis of evidence other than the disputed Exhibit 5. As to what the evidence is, has been discussed above.

Petitioners cite Gonzales vs. Mauricio, 53 Phil. 728 where this Court stated inter alia that the introduction of a forged instrument by a witness renders the testimony of the latter practically worthless. That statement however is not applicable to the situation before Us because in Gonzalez the particular document or receipt referred to was found to be entirely false as to its contents, handwriting, and signature, whereas here all that was found to be false is the signature of a witnessing official.

3. The last argument of petitioners is the object of the third assigned error. It is contended that the appellate court erred in not giving effect to the deed of partition, Exhibit D, notwithstanding the fact that the name of Andrea Montalbo appears in the document as one of the witnesses thereto.

Exhibit D appears to be a document dated May 27, 1934, wherein certain properties allegedly belonging to Estanislao Montalbo were divided between Petra Montalbo and Jose Ortega, husband of deceased Felisa Montalbo. Petitioner Basilio Perez declared that one of the parcels of land mentioned in the document is the land now in litigation which is particularly marked as Exhibit D-1. He also testified that Exhibit D was signed by him and his wife, Petra Montalbo, by Jose Ortega, husband of deceased Felisa Montalbo, and thumbmarked by the latter's children all in his presence. (tsn December 15,1960, pp. 19-24) Surprisingly, however, Basilio Perez did not at all mention during the course of his testimony that the old woman, Andrea Montalbo, signed the deed of partition as a witness. We have gone over the transcript of Basilio Perez' declaration on direct and cross-examination (tsn December 15, 1960, pp. 15-34; September 25, 1961, pp. 3-40) and at no instance did he ever state that Andrea Montalbo was present during the preparation of the document, that she read or knew the contents thereof which by the way consists of six handwritten pages, and that she signed her name on the document. It was incumbent upon petitioners to identify the signature of Andrea Montalbo on the document if her signature was truly there. As a matter of fact, examining the document Exhibit D We entertain doubts whether the name referred to by petitioners is "Andrea Montalbo", for, as written, it also can read "Maria Montalbo". At any rate, whatever is the import of said deed of partition, the same binds only the parties thereto but does not affect third persons such as Andrea Montalbo or the herein Mendozas in the absence of proof that they participated in one way or another in the preparation and execution of thedocument. As it is, Andrea Montalbo was a stranger to that deed of partition and any recital therein concerning the property under litigation cannot be used as evidence to prejudice her and her successors-in-interest or place her in estoppel as to her claims over the property. Res inter alios acta alteri nocere non debet. A transaction between two parties ought not to operate to the prejudice of a third person or stranger. 11

4. In the fourth assignment of error, petitioners claim that the appellate court should have rendered a decision in their favor. That both the trial court and respondent appellate court have correctly evaluated the evidence, has been clearly demonstrated by Us.

IN VIEW OF ALL THE ABOVE CONSIDERATIONS, We find no reversible error in the decision under review and We AFFIRM the same with costs against petitioners.

So Ordered.\

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

 

G.R. No. 107930 October 7, 1994

HEIRS OF GEORGE BOFILL, IGNACIO BOFILL, VICTORIA B. ANASTACIO, REGINA FRANCISCA B. CHUACHINGCO, EVELYN B. SERRA, MANUELITA B. VIZCONDE, LAGRIMAS B. DULLANO, LOURDES B. DASAL, MANUEL BOFILL, JR., HEIRS OF PLARIDEL BOFILL, EDUARDO BOFILL, MARIA LUISA BOFILL,petitioners, vs.HONORABLE COURT OF APPEALS, SPS. ENRIQUE BEGALAN and FLORDELIZA BEGALAN, SPS. JOSE CATALAN and BERNARDITA CATALAN, and HEIRS OF MANUEL BARREDO, namely, NORMA B. ALEJAGA, LEONY BARREDO, MAGILYN BARREDO, MARIA BARREDO, RAMY BARREDO, RELLY BARREDO, ENRIQUETA B. SARTORIO, represented by VILMA BARREDO BALATAYO, respondents.

P.E. Cases, Jr. & Associates Law Offices for petitioners.

J.D. Villanueva Law Office for private respondents.

 

BELLOSILLO, J.:

This case arose from an action for declaration of ownership over LotNo. 2954-A of the Panay Cadastre, situated in Bo. Linatiran, Panay, Capiz, covered by Transfer Certificate of Title No. T-19894, filed by petitioners against the Sps. Enrique and Flordeliza Begalan and Sps. Jose and Bernardita Catalan, two (2) of private respondents herein. Joining their cause, the heirs of Manuel Barredo, claiming also to be the owners of the lot in litigation, filed a complaint in intervention against the petitioners herein, heirs of Manuel Bofill.

On 12 August 1988, the trial court rendered a decision declaring petitioners the owners of the lot in question and entitled to the possession thereof, ordering respondents as defendants therein to vacate the premises, and to pay petitioners P5,000.00 as attorney's fees. The counterclaim as well as the complaint in intervention was dismissed.1

The rationale for the foregoing disposition of the trial court is that —

. . . the claim of the plaintiff-intervenors and defendants over this land mainly anchored on the supposed Deed of Exchange of March 8, 1994, executed between Manuel Bofill and Cornelio Barriatos, was a mere exchange of collateral(s) from Lot 526 to Lot 2954-A for a loan of P450.00 obtained by Manuel Bofill. The said loan having been paid one year thereafter, said deed of exchange as collateral for said loan was rendered without legal force and effect, hence no entry in the title covering

the lot was made regarding said loan, nor was the title in the name of Manuel Bofill transferred to anybody else up to the present time.

The case filed by Juana Brillo against Sotera Bofill . . . on November 17, 1975 for the registration of the Deed of Exchange of 1944 and for the surrender of the original title was done thirty-one (31) years after its execution, considering laches and prescription, is also without force and effect . . . . Moreover, the order in said case has become moot and academic upon the death of Sotera Bofill and the surrender of RO-1456 by her heirs and the cancellation of the same upon the execution of anExtra-Judicial Partition by the heirs of Manuel Bofill and Sotera Bofill and the issuance of the present Certificate of Title No. 19894 in the name of the plaintiffs.

Respondents appealed to the Court of Appeals which on 31 August 1992 reversed and set aside the decision of the lower court. It directed the Register of Deeds of Capiz ". . . to divide TCT No. 19894 into two titles: one in the name of the plaintiffs without including the portion covered by Lot No. 2954-A; the other title covering Lot No. 2954-A in the name of the heirs of Manuel Barredo (herein intervenor-appellants), after payment of the required taxes and fees."

In this petition for review of the decision of the Court of Appeals, we reverse the appellate court and reinstate the judgment of the court a quo.

First. The Court of Appeals erred in rejecting the findings of the trial court which we find to be supported by the evidence on record. Specifically, it discarded the testimonial evidence proving that the Casugot 2 involves an exchange of collaterals securing the P450-loan of Bofill to a certain Cornelio Barriatos without citing any contrary proof nor explaining why such factual finding should be thrown out or ignored. In the same fashion, it casually brushed aside the factual finding of the trial court that the loan of Bofill was paid one year after the execution of the Casugot thereby rendering it without further effect. 3

We note that this Casugot written in Hiligaynon is ambiguous as the exchange can refer to ownership, possession, collateral, etc. It does not necessarily apply to ownership alone as understood by the Court of Appeals. Apparently, the error of the appellate court lies in the interpretation of the Casugot when it stated in its decision that the document "speaks eloquently of Manuel Bofill's intention to transfer" Lot 2954-A to Barriatos and concluded that it was an exchange of ownership of two (2) lots. This error is not surprising as the appellate court not only adopted the English translation of the Casugot offered by private respondents, which was obviously tailored to suit their purpose, but also because it omitted a material phrase stipulating that Barriatos was returning Lot 526 to Bofill. Without that phrase on the return of Lot 526 it would appear, as it does, that Bofill donated Lot 2954-A to Barriatos which, in effect, would render the deed of exchange an absurdity. Had the Court of Appeals been more accurate and precise in quoting data from the records, perhaps it would have arrived at the right conclusion.

Second. Admittedly, the Casugot clearly reflects the agreement of Bofill and Barriatos with regard to the ownership of Lot 2954, now comprisingLot 2954-A, which is the lot in controversy, and Lot 2954-B. Therein is their clear and categorical covenant: "MANUEL F. BOFILL is the real and absolute owner of two (2) parcels of land, Lot 2954 and Lot 526." This declaration is decisive in the disposition of this case as it contains an express stipulation by the signatories thereto on the ownership of Bofill of the lot in question binding upon them and their successors in interest.

Private respondents attempt to crush this overwhelming evidence by giving certain portions of the Casugot a connotation contrary to the agreement and intention of the parties. Private respondents allege that the 1939 plan subdividing Lot 2954 into Lot 2954-A in the name of Barriatos

and Lot 2954-B in the name of Bofill reveals the extent of ownership of the parties overLot 2954. But the plan reflecting this subdivision is not conclusive as to ownership as it may refer only to the delineation of their possession. The best proof of the ownership of Manuel Bofill is the certificate of title in his name. Moreover, the parties to the agreement apparently did not consider the placing of Lot 2954-A in the name of Barriatos as a transfer of ownership because when they executed the Casugot in 1944 they still acknowledged Bofill as the real and absolute owner of the entire Lot 2954.

Private respondents call our attention to the statement in the Casugot to the effect that Barriatos was already in possession of Lot 2954-A before the subdivision of the lot. This argument is based on an erroneous premise since nowhere in the Casugot is the word "possession" or its equivalent in Hiligaynon mentioned. It is only in the English translation proposed by intervenors, which the Court of Appeals injudiciously adopted, where that word appears. In any case, the exchange of lots as used in the Casugot can refer to exchange of ownership, of possession, of collaterals, or of any other attribute of ownership. Definitely, exchange of lands does not necessarily refer to exchange of ownership. Besides, possession is not a definitive proof of ownership, nor is non-possession inconsistent therewith. Hence, the claim that Barriatos was the possessor of Lot 2954-A is not incompatible with Bofill's claim of ownership.

Private respondents next point us to the crux of the Casugot whereby Barriatos returns his interest in Lot 526 to Bofill in exchange for Lot 2954-A. However, it is not clear from the provision what interest was being traded by the parties. Consequently, we are constrained to lean on the premise they themselves established in the first part of the Casugot, i.e., that Bofill is the real and absolute owner of Lot 526 and Lot 2954. Barriatos not being the owner of either lot, there could not have been a transfer of ownership between them.

As regards the clause creating a right of way on Lot 2954-A in favor of Lot 2954-B undisputably belonging to Bofill, private respondents arguethat Bofill would not have required such easement if he were the owner ofLot 2954-A, the latter being considered a servient estate. This argument is fallacious; it is non sequitur. Bofill did not lose ownership of his lot by imposing on it a right of way in favor of another lot belonging to him. Besides, we cannot ignore the practice in the provinces that in giving a realty for a collateral, possession usually goes with it. At the time the Casugot was entered into between the parties, this was a common practice. This further explains the real transaction between them and why Bofill had to demand a right of way over his own land, so that when possession thereof should be transferred to a third person he could still pass through it, otherwise, he may have no ingress to or egress from his estate.

Private respondents focus on the stipulation that if a certificate of title over Lot 2954-A would be issued to Barriatos the above-mentioned right of way would be annotated thereon. While the signatories expressed the possibility of transferring Lot 2954-A to Barriatos in the future, it is quite clear that the provision cited does not forthwith effect such transfer. The records do not reveal that the transfer was eventually carried out by the parties or their successors in interest.

Third. As regards the case filed by Juana Brillo against Sotera Bofill for the surrender of the duplicate certificate of title, the appellate court statedthat —

. . . the CFI is also convinced of the strength of Juana Brillo's claim of ownership (which herein appellant-intervenors subsequently acquired) based originally on the aforequoted Deed of Exchange. The above decision does not appear to have been appealed. Thus it is already the law of the case between therein parties and their

successors in interest. The CFI's Decision being against plaintiff's mother is binding against the plaintiffs (see Sec. 49, Rule 39 of the Rules of Court).

We cannot agree with this conclusion. for, it was error for the Court of Appeals to assume that the issue of ownership over Lot 2954-A was already determined in Special Case No. 1828 as to bar the present action for declaration of ownership. In that case, the CFI simply directed the mother of petitioners, Sotera Vda. de Bofill, to surrender the duplicate certificate of title overLot 2954 so that the Casugot and the subsequent instruments of sale covering Lot 2954-A could be annotated thereon. Definitely, that court did not declare Juana Brillo owner of the lot in question. The sole issue resolved by the CFI was whether Juana Brillo was entitled to have the Casugot as well as the documents of sale conveying the rights of Barriatos to her thereunder recorded in the Certificate of title No. RO-1456 in the name of Manuel Bofill. The ownership of Lot 2954-A and Lot 526 was never raised, hence, was not determined therein in Special Case No. 1828.

Although Juana Brillo prayed for the cancellation of RO-1456 and the issuance of a separate certificate of title in her name which would effectively divest Bofill of his title over Lot 2954-A, this was not granted by the CFI. The CFI merely directed the annotation of the deeds on RO-1456 apparently because there was not enough evidence to negate the title of Bofill over Lot 2954-A. Besides, this was not the appropriate proceeding to adjudicate the ownership of the property. The evidence adduced by Brillo was only sufficient to compel Sotera Vda. de Bofill to surrender certificate of title No. RO-1456. It was not adequate to settle the issue of ownership.

The factual finding of the CFI in Special Case No. 1828 that Lot 526 was owned by Barriatos was, to say the least, erroneous considering that the Casugot, apparently the same document from which the CFI drew its conclusion, expressly stipulates that Bofill was the owner of Lot 2954-A and therefore implying that Bofill was the owner of Lot 526, respondents are assailing albeit unwittingly the very decision in Special Case No. 1828 which they now set up as res judicata in this case. Thus, in adopting a theory contrary to that maintained in a former decision, a party is now precluded from raising that case as a bar to a subsequent one. Incidentally, the error was adopted by the Court of Appeals.

We emphasize that the decision in Special Case No. 1828 could not bind petitioners herein as they were not parties thereto. The order directing their mother to surrender RO-1456 that was supposed to be in her possession was only personal to her and could not bind anybody else, particularly petitioners herein who were not parties thereto nor notified thereof.

Fourth. In reversing the trial court, the Court of Appeals also reasoned out that —

. . . there is no evidence that plaintiffs religiously paid the taxes due thereon from 1947 up to the filing of their complaint. What appears to have been paid by the plaintiffs were only for the period from 1972 to 1987. However, the same were paid by the plaintiffs belatedly in 1986 and 1987, evidently in anticipation of this controversy. Besides, the receipts of this period do not show whether the taxes paid were also for Lot No. 2954-A considering that they (plaintiffs) own Lot 2954-B. Moreover, payments of realty taxes, more so if not regularly made, are not conclusive evidence of ownership (see Ferrer-Lopez v. CA, 150 SCRA 393).

This again is error. The issue as to who of the parties paid the property in good faith is not really paramount in the determination of ownership considering that generally municipal treasurers simply accept payments regardless of conflicting claims of ownership. After all, statements in the tax receipts showing such payment are far inferior to the recitals in the certificate of title. With

the Casugot and the certificate of title against them, private respondent miserably failed to carry their burden to a successful conclusion.

WHEREFORE, the appealed is REVERSED and SET ASIDE and the decision of the Regional Trial Court of Roxas City, Branch 16, in favor of petitioners in Civil Case No. V-5374 is REITERATED and AFFIRMED.

SO ORDERED.

Cruz, Davide, Jr., Quiason and Kapunan, JJ., concur.

 

#Footnotes

1 Decision in Bofill v. Begalan, Civil Case No. V-5374, Regional Trial Court, Roxas City, Br. 16, penned by Judge Odon C. Yrad, Jr.

2 Casugot in Hiligaynon means agreement or stipulation. The full title of the Casugot is Casugot Sa Pag Binaylohan Sing Duta, which literally means agreement on the exchange of land. This is the same deed of exchange referred to in the RTC decision. Hiligaynon is an Austronesian language of the Hiligaynon people (those inhabiting Panay and part of Negros, Philippines) related but not mutually intelligible with Cebuano and frequently considered a dialect of Bisayan (Webster's Third New International Dictionary, 1986 Ed., p. 1069).

3 Review of the finding of the Court of Appeals is not a function that this Court ordinarily undertakes, for as a general rule, such findings are binding and conclusive upon us (Tolentino v. de Jesus, 56 SCRA 67 and cases cited therein; People vs. Traya, 147 SCRA 381; apex Investment and Financing Corp. v. IAC, 166 SCRA 458). However, jurisprudence has developed certain exceptions to that rule, namely: (1) where the conclusion is a finding grounded entirely on speculation, surmise and conjectures; (2) the inference made is manifestly mistaken; (3) there is a grave abuse of discretion; (4) the judgment is made on misapprehension of facts; (5) the Court of Appeals went beyond the issues of the case and its findings are contrary to the admissions of both appellants and appellee; (6) the findings of fact of the Court of Appeals are contrary to those of the trial court; (7) said findings of facts are conclusions without citation of specific evidence on which they are based; (8) the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondents; and (9) when the findings of fact of the Court of Appeals are premised on the absence of evidence and is contradicted by the evidence on record (Tapalla v. Court of Appeals, G.R. No. 100682, 31 May 1993, 222 SCRA 825, 829).

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

 

G.R. No. 118114 December 7, 1995

TEODORO ACAP, petitioner, vs.COURT OF APPEALS and EDY DE LOS REYES, respondents.

 

PADILLA, J.:

This is a petition for review on certiorari of the decision 1 of the Court of Appeals, 2nd Division, in CA-G.R. No. 36177, which affirmed the decision 2 of the Regional Trial Court of Himamaylan, Negros Occidental holding that private respondent Edy de los Reyes had acquired ownership of Lot No. 1130 of the Cadastral Survey of Hinigaran, Negros Occidental based on a document entitled "Declaration of Heirship and Waiver of Rights", and ordering the dispossession of petitioner as leasehold tenant of the land for failure to pay rentals.

The facts of the case are as follows:

The title to Lot No. 1130 of the Cadastral Survey of Hinigaran, Negros Occidental was evidenced by OCT No. R-12179. The lot has an area of 13,720 sq. meters. The title was issued and is registered in the name of spouses Santiago Vasquez and Lorenza Oruma. After both spouses died, their only son Felixberto inherited the lot. In 1975, Felixberto executed a duly notarized document entitled "Declaration of Heirship and Deed of Absolute Sale" in favor of Cosme Pido.

The evidence before the court a quo established that since 1960, petitioner Teodoro Acap had been the tenant of a portion of the said land, covering an area of nine thousand five hundred (9,500) meters. When ownership was transferred in 1975 by Felixberto to Cosme Pido, Acap continued to be the registered tenant thereof and religiously paid his leasehold rentals to Pido and thereafter, upon Pido's death, to his widow Laurenciana.

The controversy began when Pido died intestate and on 27 November 1981, his surviving heirs executed a notarized document denominated as "Declaration of Heirship and Waiver of Rights of Lot No. 1130 Hinigaran Cadastre," wherein they declared; to quote its pertinent portions, that:

. . . Cosme Pido died in the Municipality of Hinigaran, Negros Occidental, he died intestate and without any known debts and obligations which the said parcel of land is (sic) held liable.

That Cosme Pido was survived by his/her legitimate heirs, namely: LAURENCIANA PIDO, wife, ELY, ERVIN, ELMER, and ELECHOR all surnamed PIDO; children;

That invoking the provision of Section 1, Rule 74 of the Rules of Court, the above-mentioned heirs do hereby declare unto [sic] ourselves the only heirs of the late Cosme Pido and that we hereby adjudicate unto ourselves the above-mentioned parcel of land in equal shares.

Now, therefore, We LAURENCIANA 3, ELY, ELMER, ERVIN and ELECHOR all surnamed PIDO, do hereby waive, quitclaim all our rights, interests and participation over the said parcel of land in favor of EDY DE LOS REYES, of legal age, (f)ilipino, married to VIRGINIA DE LOS REYES, and resident of Hinigaran, Negros Occidental, Philippines. . . . 4 (Emphasis supplied)

The document was signed by all of Pido's heirs. Private respondent Edy de los Reyes did not sign said document.

It will be noted that at the time of Cosme Pido's death, title to the property continued to be registered in the name of the Vasquez spouses. Upon obtaining the Declaration of Heirship with Waiver of Rights in his favor, private respondent Edy de los Reyes filed the same with the Registry of Deeds as part of a notice of an adverse claimagainst the original certificate of title.

Thereafter, private respondent sought for petitioner (Acap) to personally inform him that he (Edy) had become the new owner of the land and that the lease rentals thereon should be paid to him. Private respondent further alleged that he and petitioner entered into an oral lease agreement wherein petitioner agreed to pay ten (10) cavans of palay per annum as lease rental. In 1982, petitioner allegedly complied with said obligation. In 1983, however, petitioner refused to pay any further lease rentals on the land, prompting private respondent to seek the assistance of the then Ministry of Agrarian Reform (MAR) in Hinigaran, Negros Occidental. The MAR invited petitioner to a conference scheduled on 13 October 1983. Petitioner did not attend the conference but sent his wife instead to the conference. During the meeting, an officer of the Ministry informed Acap's wife about private respondent's ownership of the said land but she stated that she and her husband (Teodoro) did not recognize private respondent's claim of ownership over the land.

On 28 April 1988, after the lapse of four (4) years, private respondent filed a complaint for recovery of possession and damages against petitioner, alleging in the main that as his leasehold tenant, petitioner refused and failed to pay the agreed annual rental of ten (10) cavans of palay despite repeated demands.

During the trial before the court a quo, petitioner reiterated his refusal to recognize private respondent's ownership over the subject land. He averred that he continues to recognize Cosme Pido as the owner of the said land, and having been a registered tenant therein since 1960, he never reneged on his rental obligations. When Pido died, he continued to pay rentals to Pido's widow. When the latter left for abroad, she instructed him to stay in the landholding and to pay the accumulated rentals upon her demand or return from abroad.

Petitioner further claimed before the trial court that he had no knowledge about any transfer or sale of the lot to private respondent in 1981 and even the following year after Laurenciana's departure for abroad. He denied having entered into a verbal lease tenancy contract with private respondent and that assuming that the said lot was indeed sold to private respondent without his knowledge, R.A. 3844, as amended, grants him the right to redeem the same at a reasonable price. Petitioner also bewailed private respondent's ejectment action as a violation of his right to security of tenure under P.D. 27.

On 20 August 1991, the lower court rendered a decision in favor of private respondent, the dispositive part of which reads:

WHEREFORE, premises considered, the Court renders judgment in favor of the plaintiff, Edy de los Reyes, and against the defendant, Teodoro Acap, ordering the following, to wit:

1. Declaring forfeiture of defendant's preferred right to issuance of a Certificate of Land Transfer under Presidential Decree No. 27 and his farmholdings;

2. Ordering the defendant Teodoro Acap to deliver possession of said farm to plaintiff, and;

3. Ordering the defendant to pay P5,000.00 as attorney's fees, the sum of P1,000.00 as expenses of litigation and the amount of P10,000.00 as actual damages. 5

In arriving at the above-mentioned judgment, the trial court stated that the evidence had established that the subject land was "sold" by the heirs of Cosme Pido to private respondent. This is clear from the following disquisitions contained in the trial court's six (6) page decision:

There is no doubt that defendant is a registered tenant of Cosme Pido. However, when the latter died their tenancy relations changed since ownership of said land was passed on to his heirs who, by executing a Deed of Sale, which defendant admitted in his affidavit, likewise passed on their ownership of Lot 1130 to herein plaintiff (private respondent). As owner hereof, plaintiff has the right to demand payment of rental and the tenant is obligated to pay rentals due from the time demand is made. . . . 6

xxx xxx xxx

Certainly, the sale of the Pido family of Lot 1130 to herein plaintiff does not of itself extinguish the relationship. There was only a change of the personality of the lessor in the person of herein plaintiff Edy de los Reyes who being the purchaser or transferee, assumes the rights and obligations of the former landowner to the tenant Teodoro Acap, herein defendant. 7

Aggrieved, petitioner appealed to the Court of Appeals, imputing error to the lower court when it ruled that private respondent acquired ownership of Lot No. 1130 and that he, as tenant, should pay rentals to private respondent and that failing to pay the same from 1983 to 1987, his right to a certificate of land transfer under P.D. 27 was deemed forfeited.

The Court of Appeals brushed aside petitioner's argument that the Declaration of Heirship and Waiver of Rights (Exhibit "D"), the document relied upon by private respondent to prove his ownership to the lot, was excluded by the lower court in its order dated 27 August 1990. The order indeed noted that the document was not identified by Cosme Pido's heirs and was not registered with the Registry of Deeds of Negros Occidental. According to respondent court, however, since the Declaration of Heirship and Waiver of Rights appears to have been duly notarized, no further proof of its due execution was necessary. Like the trial court, respondent court was also convinced that the said document stands as prima facie proof of appellee's (private respondent's) ownership of the land in dispute.

With respect to its non-registration, respondent court noted that petitioner had actual knowledge of the subjectsale of the land in dispute to private respondent because as early as 1983, he (petitioner) already knew of private respondent's claim over the said land but which he thereafter denied, and that in 1982, he (petitioner) actually paid rent to private respondent. Otherwise stated, respondent court considered this fact of rental payment in 1982 as estoppel on petitioner's part to thereafter refute private respondent's claim of ownership over the said land. Under these circumstances, respondent court ruled that indeed there was deliberate refusal by petitioner to pay rent for a continued period of five years that merited forfeiture of his otherwise preferred right to the issuance of a certificate of land transfer.

In the present petition, petitioner impugns the decision of the Court of Appeals as not in accord with the law and evidence when it rules that private respondent acquired ownership of Lot No. 1130 through the aforementioned Declaration of Heirship and Waiver of Rights.

Hence, the issues to be resolved presently are the following:

1. WHETHER OR NOT THE SUBJECT DECLARATION OF HEIRSHIP AND WAIVER OF RIGHTS IS A RECOGNIZED MODE OF ACQUIRING OWNERSHIP BY PRIVATE RESPONDENT OVER THE LOT IN QUESTION.

2. WHETHER OR NOT THE SAID DOCUMENT CAN BE CONSIDERED A DEED OF SALE IN FAVOR OF PRIVATE RESPONDENT OF THE LOT IN QUESTION.

Petitioner argues that the Regional Trial Court, in its order dated 7 August 1990, explicitly excluded the document marked as Exhibit "D" (Declaration of Heirship, etc.) as private respondent's evidence because it was not registered with the Registry of Deeds and was not identified by anyone of the heirs of Cosme Pido. The Court of Appeals, however, held the same to be admissible, it being a notarized document, hence, a prima facie proof of private respondents' ownership of the lot to which it refers.

Petitioner points out that the Declaration of Heirship and Waiver of Rights is not one of the recognized modes of acquiring ownership under Article 712 of the Civil Code. Neither can the same be considered a deed of sale so as to transfer ownership of the land to private respondent because no consideration is stated in the contract (assuming it is a contract or deed of sale).

Private respondent defends the decision of respondent Court of Appeals as in accord with the evidence and the law. He posits that while it may indeed be true that the trial court excluded his Exhibit "D" which is the Declaration of Heirship and Waiver of Rights as part of his evidence, the trial court declared him nonetheless owner of the subject lot based on other evidence adduced during the trial, namely, the notice of adverse claim (Exhibit "E") duly registered by him with the Registry of Deeds, which contains the questioned Declaration of Heirship and Waiver of Rights as an integral part thereof.

We find the petition impressed with merit.

In the first place, an asserted right or claim to ownership or a real right over a thing arising from a juridical act, however justified, is not per se sufficient to give rise to ownership over the res. That right or title must be completed by fulfilling certain conditions imposed by law. Hence, ownership and real rights are acquired only pursuant to a legal mode or process. While title is the juridical justification, mode is the actual process of acquisition or transfer of ownership over a thing in question. 8

Under Article 712 of the Civil Code, the modes of acquiring ownership are generally classified into two (2) classes, namely, the original mode (i.e., through occupation, acquisitive prescription, law or intellectual creation) and thederivative mode (i.e., through succession mortis causa or tradition as a result of certain contracts, such as sale, barter, donation, assignment or mutuum).

In the case at bench, the trial court was obviously confused as to the nature and effect of the Declaration of Heirship and Waiver of Rights, equating the same with a contract (deed) of sale. They are not the same.

In a Contract of Sale, one of the contracting parties obligates himself to transfer the ownership of and to deliver a determinate thing, and the other party to pay a price certain in money or its equivalent. 9

Upon the other hand, a declaration of heirship and waiver of rights operates as a public instrument when filed with the Registry of Deeds whereby the intestate heirs adjudicate and divide the estate left by the decedent among themselves as they see fit. It is in effect an extrajudicial settlement between the heirs under Rule 74 of the Rules of Court. 10

Hence, there is a marked difference between a sale of hereditary rights and a waiver of hereditary rights. The first presumes the existence of a contract or deed of sale between the parties. 11 The second is, technically speaking, a mode of extinction of ownership where there is an abdication or intentional relinquishment of a known right with knowledge of its existence and intention to relinquish it, in favor of other persons who are co-heirs in the succession. 12 Private respondent, being then a stranger to the succession of Cosme Pido, cannot conclusively claim ownership over the subject lot on the sole basis of the waiver document which neither recites the elements of either a sale, 13 or a donation, 14 or any other derivative mode of acquiring ownership.

Quite surprisingly, both the trial court and public respondent Court of Appeals concluded that a "sale" transpired between Cosme Pido's heirs and private respondent and that petitioner acquired actual knowledge of said sale when he was summoned by the Ministry of Agrarian Reform to discuss private respondent's claim over the lot in question. This conclusion has no basis both in fact and in law.

On record, Exhibit "D", which is the "Declaration of Heirship and Waiver of Rights" was excluded by the trial court in its order dated 27 August 1990 because the document was neither registered with the Registry of Deeds nor identified by the heirs of Cosme Pido. There is no showing that private respondent had the same document attached to or made part of the record. What the trial court admitted was Annex "E", a notice of adverse claim filed with the Registry of Deeds which contained the Declaration of Heirship with Waiver of rights and was annotated at the back of the Original Certificate of Title to the land in question.

A notice of adverse claim, by its nature, does not however prove private respondent's ownership over the tenanted lot. "A notice of adverse claim is nothing but a notice of a claim adverse to the registered owner, the validity of which is yet to be established in court at some future date, and is no better than a notice of lis pendenswhich is a notice of a case already pending in court." 15

It is to be noted that while the existence of said adverse claim was duly proven, there is no evidence whatsoever that a deed of sale was executed between Cosme Pido's heirs and private respondent transferring the rights of Pido's heirs to the land in favor of private respondent. Private respondent's right or interest therefore in the tenanted lot remains an adverse claim which cannot by itself be sufficient to cancel the OCT to the land and title the same in private respondent's name.

Consequently, while the transaction between Pido's heirs and private respondent may be binding on both parties, the right of petitioner as a registered tenant to the land cannot be perfunctorily forfeited on a mere allegation of private respondent's ownership without the corresponding proof thereof.

Petitioner had been a registered tenant in the subject land since 1960 and religiously paid lease rentals thereon. In his mind, he continued to be the registered tenant of Cosme Pido and his family (after Pido's death), even if in 1982, private respondent allegedly informed petitioner that he had become the new owner of the land.

Under the circumstances, petitioner may have, in good faith, assumed such statement of private respondent to be true and may have in fact delivered 10 cavans of palay as annual rental for 1982 to private respondent. But in 1983, it is clear that petitioner had misgivings over private respondent's claim of ownership over the said land because in the October 1983 MAR conference, his wife Laurenciana categorically denied all of private respondent's allegations. In fact, petitioner even secured a certificate from the MAR dated 9 May 1988 to the effect that he continued to be the registered tenant of Cosme Pido and not of private respondent. The reason is that private respondent never registered the Declaration of Heirship with Waiver of Rights with the Registry of Deeds or with the MAR. Instead, he (private respondent) sought to do indirectly what could not be done directly,i.e., file a notice of adverse claim on the said lot to establish ownership thereover.

It stands to reason, therefore, to hold that there was no unjustified or deliberate refusal by petitioner to pay the lease rentals or amortizations to the landowner/agricultural lessor which, in this case, private respondent failed to establish in his favor by clear and convincing evidence. 16

Consequently, the sanction of forfeiture of his preferred right to be issued a Certificate of Land Transfer under P.D. 27 and to the possession of his farmholdings should not be applied against petitioners, since private respondent has not established a cause of action for recovery of possession against petitioner.

WHEREFORE, premises considered, the Court hereby GRANTS the petition and the decision of the Court of Appeals dated 1 May 1994 which affirmed the decision of the RTC of Himamaylan, Negros Occidental dated 20 August 1991 is hereby SET ASIDE. The private respondent's complaint for recovery of possession and damages against petitioner Acap is hereby DISMISSED for failure to properly state a cause of action, without prejudice to private respondent taking the proper legal steps to establish the legal mode by which he claims to have acquired ownership of the land in question.

SO ORDERED.

Acap vs CA g.r. 118114Facts:

Acap was a tenant of the lot owned by Cosme Pido. Upon Pido's death, Acap paid the

monthly rental dues to the widow Lauranciana Pido. He died intestate. The widow and her

3 sons afterward executed a notarized document denominated as "Declaration of Heirship

and waiver of rights" in favor of private respondant De los Reyes. Acap did not recognize

De los Reyes claim of ownership over the land as he contended that the land still belongs to

the heirs of Cosme Pido, and won't pay the rent demanded by De los Reyes.

Issue:

Whether or not the subject Declaration of heirship and waiver of rights is recognized mode

of acquiring ownership? Can it be considered a deed of sale?

Ruling:

In a contract of sale, one of the contracting parties obligates himself to transfer the

ownership of and to deliver a determinate thing, and the other party to pay a price certain

in money or its equivalent. Upon the other hand, a declaration of heirship and waiver of

rights operates as a public instrument when filed with the Registry of Deeds whereby the

intestate heirs adjudicate and divide the estate left by the decedent among themselves as

they see fit. It is in effect an extrajudicial settlement between the heirs under Rule 74 of

the Rules of Court.

There is a marked difference between a sale of hereditary rights and a waiver of hereditary

rights. The first presumes the existence of a contract or deed of sale between the parties.

The second is a mode of extinction of an ownership where there is an abdication or

intentional relinquishment of a known right with knowledge of its existence in favor of

other persons who are co-heirs in the succession. De los Reyes, being then a stranger to

the succession of Cosme Pido, cannot conclusively claim ownership over the subject lot on

the sole basis of the waiver of document which neither recites the elements of either a sale

or donation or any other derivative modes of acquiring ownership.

DEPRA V. DUMLAO136 SCRA 475

 

FACTS:Dumlao owned a land adjacent to Depra.  Upon his construction of a house, it  encroached  on  the  land  of  Depra.    An  unlawful  detainer  case  was  filed against him.  A  case  to quiet  title was also instituted  wherein Depra was held to be the owner of the land.  

HELD:Res judicata doesn't apply wherein the first case was for ejectment and the other was for quieting of title.

G.R. No. , 136 SCRA 475Republic of the Philippines

SUPREME COURTManila

EN BANC

DECISION

April 30, 1985

G.R. No. , ,vs., ., J.:This is an appeal from the Order of the former Court of First Instance of Iloilo to the then Court of Appeals, which the latter certified to this instance as involving pure questions of law

Plaintiff-appellee, Francisco Depra, is the owner of a parcel of land registered under Transfer Certificate of Title No. T3087, known as Lot No. 685, situated in the municipality of Dumangas, Iloilo, with an area of approximately 8,870 square meters. Agustin Dumlao, defendant-appellant, owns an adjoining lot, designated as Lot No. 683, with an approximate area of 231 sq. ms.

Sometime in 1972, when DUMLAO constructed his house on his lot, the kitchen thereof had encroached on an area of thirty four (34)

square meters of DEPRA's property, After the encroachment was discovered in a relocation survey of DEPRA's lot made on November 2,1972, his mother, Beatriz Depra after writing a demand letter asking DUMLAO to move back from his encroachment, filed an action for Unlawful Detainer on February 6,1973 against DUMLAO in the Municipal Court of of Dumangas, docketed as Civil Case No 1, Said complaint was later amended to include DEPRA as a party plain. plaintiff.

After trial, the Municipal Court found that DUMLAO was a builder in good faith, and applying Article 448 of the Civil Code, rendered judgment on September 29, 1973, the dispositive portion of which reads:

Ordering that a forced lease is created between the parties with the plaintiffs, as lessors, and the defendants as lessees, over the disputed portion with an area of thirty four (34) square meters, the rent to be paid is five (P5.00) pesos a month, payable by the lessee to the lessors within the first five (5) days of the month the rent is due; and the lease shall commence on the day that this decision shall have become final.

From the foregoing judgment, neither party appeal so that, ff it were a valid judgment, it would have ordinarily lapsed into finality, but even then, DEPRA did not accept payment of rentals so that DUMLAO deposited such rentals with the Municipal Court.

On July 15,1974, DEPRA filed a Complaint for Quieting of Title against DUMLAO before the then Court of First Instance of Iloilo, Branch IV (Trial Court), involving the very same 34 square meters, which was the bone of contention in the Municipal Court. DUMLAO, in his Answer, admitted the encroachment but alleged, in the main, that the present suit is barred by res judicata by virtue of the

Decision of the Municipal Court, which had become final and executory.After the case had been set for pre-trial, the parties submitted a Joint Motion for Judgment based on the Stipulation of Facts attached thereto. Premised thereon, the Trial Court on October 31, 1974, issued the assailed Order, decreeing:

WHEREFORE, the Court finds and so holds that the thirty four (34) square meters subject of this litigation is part and parcel of Lot 685 of the Cadastral Survey of Dumangas of which the plaintiff is owner as evidenced by Transfer Certificate of Title No. 3087 and such plaintiff is entitled to possess the same.

Without pronouncement as to costs.

SO ORDERED.

Rebutting the argument of res judicata relied upon by DUMLAO, DEPRA claims that the Decision of the Municipal Court was null and void ab initio because its jurisdiction is limited to the sole issue of possession, whereas decisions affecting lease, which is an encumbrance on real property, may only be rendered by Courts of First Instance.Addressing out selves to the issue of validity of the Decision of the Municipal Court, we hold the same to be null and void. The judgment in a detainer case is effective in respect of possession only (Sec. 7, Rule 70, Rules of Court). 1 The Municipal Court over-stepped its bounds when it imposed upon the parties a situation of "forced lease", which like "forced co-ownership" is not favored in law. Furthermore, a lease is an interest in real property, jurisdiction over which belongs to Courts of First Instance (now Regional Trial Courts) (Sec. 44(b), Judiciary Act of 1948; 2 Sec. 19 (2)Batas Pambansa Blg. 129). 3 Since the Municipal Court, acted without jurisdiction, its

Decision was null and void and cannot operate as res judicata to the subject complaint for Queting of Title. Besides, even if the Decision were valid, the rule onres judicata would not apply due to difference in cause of action. In the Municipal Court, the cause of action was the deprivation of possession, while in the action to quiet title, the cause of action was based on ownership. Furthermore, Sec. 7, Rule 70 of the Rules of Court explicitly provides that judgment in a detainer case "shall not bar an action between the same parties respecting title to the land. " 4Conceded in the Stipulation of Facts between the parties is that DUMLAO was a builder in good faith. Thus,

8. That the subject matter in the unlawful detainer case, Civil Case No. 1, before the Municipal Court of Dumangas, Iloilo involves the same subject matter in the present case, the Thirty-four (34) square meters portion of land and built thereon in good faith is a portion of defendant's kitchen and has been in the possession of the defendant since 1952 continuously up to the present; ... (Emphasis ours)

Consistent with the principle that our Court system, like any other, must be a dispute resolving mechanism, we accord legal effect to the agreement of the parties, within the context of their mutual concession and stipulation. They have, thereby, chosen a legal formula to resolve their dispute to appeal ply to DUMLAO the rights of a "builder in good faith" and to DEPRA those of a "landowner in good faith" as prescribed in Article 448. Hence, we shall refrain from further examining whether the factual situations of DUMLAO and DEPRA conform to the juridical positions respectively defined by law, for a "builder in good faith" under Article 448, a "possessor in good faith" under Article 526 and a "landowner in good faith' under Article 448.

In regards to builders in good faith, Article 448 of the Civil Code provides:

ART. 448. The owner of the land on which anything has been built sown or planted in good faith,

shall have the right

to appropriate as his own the works, sowing or planting, after payment of the indemnity provided for in articles 546 and 548, or

to oblige the one who built or planted to pay the price of the land, and the one who sowed, the proper rent.

However, the builder or planter cannot be obliged to buy the land if its value is considerably more than that of the building or trees. In such case, he shall pay reasonable rent, if the owner of the land does not choose to appropriate the building or trees after proper indemnity. The parties shall agree upon the terms of the lease and in case of disagreement, the court shall fix the terms thereof (Paragraphing supplied)

Pursuant to the foregoing provision, DEPRA has the option either to pay for the encroaching part of DUMLAO's kitchen, or to sell the encroached 34 square meters of his lot to DUMLAO. He cannot refuse to pay for the encroaching part of the building, and to sell the encroached part of his land, 5 as he had manifested before the Municipal Court. But that manifestation is not binding because it was made in a void proceeding.

However, the good faith of DUMLAO is part of the Stipulation of Facts in the Court of First Instance. It was thus error for the Trial Court to have ruled that DEPRA is "entitled to possession," without more, of the disputed portion implying thereby that he is entitled to

have the kitchen removed. He is entitled to such removal only when, after having chosen to sell his encroached land, DUMLAO fails to pay for the same. 6 In this case, DUMLAO had expressed his willingness to pay for the land, but DEPRA refused to sell.

The owner of the building erected in good faith on a land owned by another, is entitled to retain the possession of the land until he is paid the value of his building, under article 453 (now Article 546). The owner of the land, upon the other hand, has the option, under article 361 (now Article 448), either to pay for the building or to sell his land to the owner of the building. But he cannot as respondents here did refuse both to pay for the building and to sell the land and compel the owner of the building to remove it from the land where it erected. He is entitled to such remotion only when, after having chosen to sell his land. the other party fails to pay for the same (italics ours).

We hold, therefore, that the order of Judge Natividad compelling defendants-petitioners to remove their buildings from the land belonging to plaintiffs-respondents only because the latter chose neither to pay for such buildings nor to sell the land, is null and void, for it amends substantially the judgment sought to be executed and is. furthermore, offensive to articles 361 (now Article 448) and 453 (now Article 546) of the Civil Code. (Ignacio vs. Hilario, 76 Phil. 605, 608[1946]).A word anent the philosophy behind Article 448 of the Civil rode.

The original provision was found in Article 361 of the Spanish Civil Code; which provided:

ART. 361. The owner of land on which anything has been built, sown or planted in good faith, shall have the right to appropriate as his own the work, sowing or planting, after the payment of the

indemnity stated in Articles 453 and 454, or to oblige the one who built or planted to pay the price of the land, and the one who sowed, the proper rent.

As will be seen, the Article favors the owner of the land, by giving him one of the two options mentioned in the Article. Some commentators have questioned the preference in favor of the owner of the land, but Manresa's opinion is that the Article is just and fair.

. . . es justa la facultad que el codigo da al dueno del suelo en el articulo 361, en el caso de edificacion o plantacion? Algunos comentaristas la conceptuan injusta, y como un extraordinario privilegio en favor de la propiedad territorial. Entienden que impone el Codigo una pena al poseedor de buena fe y como advierte uno de los comentaristas aludidos 'no se ve claro el por que de tal pena . . . al obligar al que obro de buena fe a quedarse con el edificio o plantacion, previo el pago del terreno que ocupa, porque si bien es verdad que cuando edifico o planto demostro con este hecho, que queria para si el edificio o plantio tambien lo es que el que edifico o planto de buena fe lo hizo en la erronea inteligencia de creerse dueno del terreno Posible es que, de saber lo contrario, y de tener noticia de que habia que comprar y pagar el terreno, no se hubiera decidido a plantar ni a edificar. La ley obligandole a hacerlo fuerza su voluntad, y la fuerza por un hecho inocente de que no debe ser responsable'. Asi podra suceder pero la realidad es que con ese hecho voluntario, aunque sea inocente, se ha enriquecido torticeramente con perjuicio de otro a quien es justo indemnizarle,

En nuestra opinion, el Codigo ha resuelto el conflicto de la manera mas justa y equitativa y respetando en lo possible el principio que para la accesion se establece en el art. 358. 7

Our own Code Commission must have taken account of the objections to Article 361 of the Spanish Civil Code. Hence, the Commission provided a modification thereof, and Article 448 of our Code has been made to provide:

ART. 448. The owner of the land on which anything has been built, sown or planted in good faith, shall have the right to appropriate as his own the works, sowing or planting, after payment of the indemnity provided for in articles 546 and 548, or to oblige the one who built or planted to pay the price of the land, and the one who sowed, the proper rent. However, the builder or planter cannot be obliged to buy the land if its value is considerably more than that of the building or trees. In such case, he shall pay reasonable rent, if the owner of the land does not choose to appropriate the building or trees after proper indemnity. The parties shall agree upon the terms of the lease and in case of disagreement, the court shall fix the terms thereof.

Additional benefits were extended to the builder but the landowner retained his options.

The fairness of the rules in Article 448 has also been explained as follows:

Where the builder, planter or sower has acted in good faith, a conflict of rights arises between the owners, and it becomes necessary to protect the owner of the improvements without causing injustice to the owner of the land. In view of the impracticability of creating a state of forced co-ownership, the law has provided a just solution by giving the owner of the land the option to acquire the improvements after payment of the proper indemnity, or to oblige the builder or planter to pay for the land and the sower to pay for the proper rent. It is the owner of the land who

is authorized to exercise the option, because his right is older, and because, by the principle of accession, he is entitled to the ownership of the accessory thing. (3 Manresa 213; Bernardo vs. Bataclan, 37 O.G. 1382; Co Tao vs. Chan Chico, G.R. No. 49167, April 30, 1949; Article applied: see Cabral, et al vs. Ibanez [S.C.] 52 O.G. 217; Marfori vs. Velasco, [C.A.] 52 O.G. 2050). 8WHEREFORE, the judgment of the trial Court is hereby set aside, and this case is hereby ordered remanded to the Regional Trial Court of Iloilo for further proceedings consistent with Articles 448 and 546 of the Civil Code, as follows:

1. The trial Court shall determine

a) the present fair price of DEPRA's 34 square meter area of land;

b) the amount of the expenses spent by DUMLAO for the building of the kitchen;

c) the increase in value ("plus value") which the said area of 34 square meters may have acquired by reason thereof, and

d) whether the value of said area of land is considerably more than that of the kitchen built thereon.

2. After said amounts shall have been determined by competent evidence, the Regional, Trial Court shall render judgment, as follows:

a) The trial Court shall grant DEPRA a period of fifteen (15) days within which to exercise his option under the law (Article 448, Civil Code), whether to appropriate the kitchen as his own by paying to DUMLAO either the amount of tile expenses spent by DUMLAO f or the building of the kitchen, or the increase in value ("plus value") which the said area of 34 square meters may have acquired by

reason thereof, or to oblige DUMLAO to pay the price of said area. The amounts to be respectively paid by DUMLAO and DEPRA, in accordance with the option thus exercised by written notice of the other party and to the Court, shall be paid by the obligor within fifteen (15) days from such notice of the option by tendering the amount to the Court in favor of the party entitled to receive it;

b) The trial Court shall further order that if DEPRA exercises the option to oblige DUMLAO to pay the price of the land but the latter rejects such purchase because, as found by the trial Court, the value of the land is considerably more than that of the kitchen, DUMLAO shall give written notice of such rejection to DEPRA and to the Court within fifteen (15) days from notice of DEPRA's option to sell the land. In that event, the parties shall be given a period of fifteen (15) days from such notice of rejection within which to agree upon the terms of the lease, and give the Court formal written notice of such agreement and its provisos. If no agreement is reached by the parties, the trial Court, within fifteen (15) days from and after the termination of the said period fixed for negotiation, shall then fix the terms of the lease, provided that the monthly rental to be fixed by the Court shall not be less than Ten Pesos (P10.00) per month, payable within the first five (5) days of each calendar month. The period for the forced lease shall not be more than two (2) years, counted from the finality of the judgment, considering the long period of time since 1952 that DUMLAO has occupied the subject area. The rental thus fixed shall be increased by ten percent (10%) for the second year of the forced lease. DUMLAO shall not make any further constructions or improvements on the kitchen. Upon expiration of the two-year period, or upon default by DUMLAO in the payment of rentals for two (2) consecutive months, DEPRA shall be entitled to terminate the forced lease, to recover his land, and to have the kitchen removed by DUMLAO or at the latter's expense. The rentals herein provided shall be tendered by DUMLAO to the

Court for payment to DEPRA, and such tender shall constitute evidence of whether or not compliance was made within the period fixed by the Court.

c) In any event, DUMLAO shall pay DEPRA an amount computed at Ten Pesos (P10.00) per month as reasonable compensation for the occupancy of DEPRA's land for the period counted from 1952, the year DUMLAO occupied the subject area, up to the commencement date of the forced lease referred to in the preceding paragraph;

d) The periods to be fixed by the trial Court in its Precision shall be inextendible, and upon failure of the party obliged to tender to the trial Court the amount due to the obligee, the party entitled to such payment shall be entitled to an order of execution for the enforcement of payment of the amount due and for compliance with such other acts as may be required by the prestation due the obligee.

No costs,

SO ORDERED.

Teehankee, Actg. C.J., Plana, Relova, De la Fuente and Alampay, JJ., concur.

Gutierrez, Jr., * J., took no part.

Footnotes1 "Rule 70

Forcible Entry and Detainer

"Sec. 7. Judgment conclusive only on possession; not conclusive in actions involving title or ownership. The judgment rendered in an

action for forcible entry or detainer shall be effective with respect to the possession only and in no wise bind the title or affect the ownership of the land or building. Such judgment shall not bar an action between the same parties respecting title to the land or building, nor shall it be held conclusive of the facts therein found in a case between the same parties upon a different cause of action not involving possession."

2 "Sec. 44. Original jurisdiction. ...

(b) In all civil actions which involve the title to, or possession of real property, or any interest therein, or the legality of any tax, impose or assessment, except actions of forcible entry into and detainer on lands or buildings, original jurisdiction of which is conferred by this Act upon city and municipal courts; "

3 "Sec. 19. Jurisdiction in civil ease ...

(2) In all civil actions which involve the title to, or possession of, real property, or any interest therein, except actions for forcible entry into and unlawful detainer of lands or buildings, original jurisdiction over which is conferred upon Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts;

4 Supra.5 Ignacio vs. Hilario, 76 Phil. 605 (1946).6 Ibid.7 3 Manresa, 7th Ed., pp. 300-301.

8 II Tolentino, Civil Code of the Philippines, 1963 ed., p. 97.

* Mr. Justice Hugo E. Gutierrez, Jr. took no part, having been one of the two members of a Court of Appeals' Division of Five Justices who dissented from the majority opinion certifying this case to this Court.

THIRD DIVISION

[G.R. No. 104828.  January 16, 1997]

SPOUSES RAFAEL BENITEZ AND AVELINA BENITEZ, petitioners, vs. COURT OF APPEALS, SPOUSES RENATO MACAPAGAL and ELIZABETH MACAPAGAL, respondents.

D E C I S I O NPANGANIBAN, J.:

May possession of a lot encroached upon by a part of another's house be recovered in an action for ejectment?

This is the main question raised by the petition for review on certiorari assailing the Resolution[1] of the Court of Appeals, Sixth Division,[2]dated March 24, 1992, in CA-G.R. SP No. 26853 denying due course to petitioner's appeal and affirming the decision of the Regional Trial Court of Pasig in Civil Case No. 61004, which in turn affirmed the decision of the Metropolitan Trial Court of San Juan, Metro Manila, Branch 58.

The Facts

On January 22, 1986, petitioners Rafael and Avelina Benitez purchased a 303-square-meter parcel of land with improvement from the Cavite Development Bank, covered by Transfer Certificate of Title No. 41961 (now, TCT No. 55864).

Subsequently, private respondents Renato and Elizabeth Macapagal bought a 361-square-meter lot covered by TCT No. 40155. On September 18, 1986, they filed Civil Case No. 53835 with the Regional Trial Court of Pasig, Branch 157 against petitioners for the recovery of possession of an encroached portion of the lot they purchased. The parties were able to reach a compromise in which private respondents sold the encroached portion to petitioners at the acquisition cost of One Thousand Pesos (P1,000.00) per square meter.

On July 17, 1989, private respondents purchased still another property, a 285.70 square-meter-lot covered by TCT No. 3249-R, adjacent to that of petitioners. After a relocation survey was conducted, private respondents discovered that some 46.50 square meters of their property was occupied by petitioners' house. Despite verbal and written demands, petitioners refused to vacate. A last notice to vacate was sent to petitioners on October 26, 1989.

On January 18, 1990, private respondents filed with the Metropolitan Trial Court of San Juan, Branch 58, Civil Case No. 61004 for ejectment against petitioners. The MeTC of San Juan decided in favor of the former, with the following disposition:[3]

"WHEREFORE, in view of all the foregoing, judgment is hereby rendered for the plaintiffs and against the defendants ordering them and all persons claiming rights under them to vacate and surrender possession of the subject premises to the plaintiffs as well as to pay the following:

1.            The amount of P930.00 a month starting July 17, 1989 until they finally vacate the subject premises;

2.            The amount of P5,000.00 for and as attorney's fees; and

3.            Cost of suit."

On appeal, the Regional Trial Court of Pasig, Branch 167, affirmed said decision.[4] The RTC said:[5]

"The controversy in this case is not an encroachment or overlapping of two (2) adjacent properties owned by the parties. It is a case where a part of the house of the

defendants is constructed on a portion of the property of the plaintiffs. So that as new owner of the real property, who has a right to the full enjoyment and possession of the entire parcel covered by Transfer Certificate of Title No. 41961, plaintiffs have the right to demand that defendants remove the portion of the house standing on plaintiff's realty. . . ."

The dispositive portion thereof reads:[6]

"WHEREFORE, finding no reversible error in the decision appealed from, it being more consistent with the facts and the law applicable, the same is hereby AFFIRMED in toto. Costs against the defendant-appellants.

SO ORDERED."

On further appeal, the respondent Court found no merit in petitioners' plea. In a Resolution dated March 24, 1992, the Sixth Division of said Court found the petition to be a mere rehash of the issues and arguments presented before the lower courts. It ruled in part that:[7]

"3)     Petitioners were fully aware that part of their house encroached on their neighbor's property, while respondents became aware of it only after purchasing said property. Petitioners cannot claim good faith as against the respondents.

"4)     Since petitioners are not builders in good faith, they cannot demand that respondents sell the disputed portion; what the law provides is that the builders in bad faith can be ordered to dismantle said structure at their own expense. In the interim period that petitioners' structure remains, they should pay reasonable rent until they remove the structure."

The dispositive portion thereof reads:[8]

"For reasons indicated, We find the appeal without merit and deny it due course, with costs against the petitioners.

SO ORDERED."

Hence, this petition.

The Issues

The main issue is whether the possession of the portion of the private respondents' land encroached by petitioners' house can be recovered through an action of ejectment, not accion publiciana. Corollarily, petitioners question (a) the validity of the imposition of "rental" for the occupancy of the encroached portion, (b) the denial of their claimed pre-emptive right to purchase the encroached portion of the private respondents' land, and (c) the propriety of a factual review of the CA's finding of bad faith on the part of petitioners.

In a nutshell, petitioners insist that the MeTC had no jurisdiction over the case at bar because its real nature is accion publiciana or recovery of possession, not unlawful detainer. It is not forcible entry because private respondents did not have prior possession of the contested property as petitioners possessed it ahead of private respondents. It is not unlawful detainer because petitioners were not the private respondents' tenants nor vendee unlawfully withholding possession thereof. Said court also has no jurisdiction to impose payment of "rentals" as there is no lessor-lessee relationship between the parties. They pray for a review of the factual finding of bad faith, insisting that the facts uphold their position. Due to their alleged good faith, they claim the pre-emptive right to purchase the litigated portion as a matter of course. Finally, they insist that the award of attorney's fees is unwarranted as private respondents allegedly had knowledge of the encroachment prior to their acquisition of said land.

Private respondents counter that petitioners are estopped from questioning the jurisdiction of the MeTC after they voluntarily participated in the trial on the merits and lost; that there is no law giving petitioners the option to buy the encroached property; and that petitioners acted in bad faith because they waived in their deed of sale the usual seller's warranty as to the absence of any and all liens and encumbrances on the property, thereby implying they had knowledge of the encroachment at the time of purchase .

The Court's Ruling

The petition lacks merit and should be denied.

First Issue: MeTC Has Jurisdiction

The jurisdictional requirements for ejectment, as borne out by the facts, are: after conducting a relocation survey, private respondents discovered that

a portion of their land was encroached by petitioners' house; notices to vacate were sent to petitioners, the last one being dated October 26, 1989; and private respondents filed the ejectment suit against petitioners on January 18, 1990 or within one (1) year from the last demand.

Private respondents' cause of action springs from Sec. 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 landlord, 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 landlord, 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 inferior 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. . . ."

That petitioners occupied the land prior to private respondents' purchase thereof does not negate the latter's case for ejectment. Prior possession is not always a condition sine qua non in ejectment.[9] This is one of the distinctions between forcible entry and unlawful detainer. In forcible entry, the plaintiff is deprived of physical possession of his land or building by means of force, intimidation, threat, strategy or stealth; thus, he must allege and prove prior possession. But in unlawful detainer, the defendant unlawfully withholds possession after the expiration or termination of his right thereto under any contract, express or implied. In such a case, prior physical possession is not required. [10]

Possession can also be acquired, not only by material occupation, but also by the fact that a thing is subject to the action of one's will or by the proper acts and legal formalities established for acquiring such right. [11] Possession of land can be acquired upon the execution of the deed of sale thereof by its vendor. Actual or physical occupation is not always necessary.

In the case before us, considering that private respondents are unlawfully deprived of possession of the encroached land and that the action for the recovery of possession thereof was made within the one- year reglementary period, ejectment is the proper remedy. [12] The MeTC of San Juan had jurisdiction.

In addition, after voluntarily submitting themselves to its proceedings, petitioners are estopped from assailing the jurisdiction of the MeTC. [13]This Court will not allow petitioners to attack the jurisdiction of the trial court after receiving a decision adverse to their position.

Second Issue: Compensation For Occupancy

Petitioners erroneously construed the order of the MeTC to pay private respondents Nine Hundred Thirty Pesos (P930.00) a month starting July 17, 1989 until they (petitioners) finally vacate the subject premises as "rentals". Technically, such award is not rental, but damages. Damages are recoverable in ejectment cases under Section 8, Rule 70 of the Revised Rules of Court.[14] These damages arise from the loss of the use and occupation of the property, and not the damages which private respondents may have suffered but which have no direct relation to their loss of material possession.[15] Damages in the context of Section 8, Rule 70 is limited to "rent" or "fair rental value" for the use and occupation of the property.[16]

There is no question that petitioners benefited from their occupation of a portion of private respondents' property. Such benefit justifies the award of the damages of this kind. Nemo cum alterius, detrimenti locupletari potest. No one shall enrich himself at the expense of another.

Third Issue: Option To Sell Belongs To Owner

Article 448 of the Civil Code[17] is unequivocal that the option to sell the land on which another in good faith builds, plants or sows on, belongs to the landowner.

The option is to sell, not to buy, and it is the landowner's choice. Not even a declaration of the builder, planter, or sower's bad faith shifts this option to him per Article 450 of the Civil Code.[18] This advantage in Article 448 is accorded the landowner because "his right is older, and because, by the principle of accession, he is entitled to the ownership of the accessory thing."[19] There can be no pre-emptive right to buy even as a compromise, as this prerogative belongs solely to the landowner. No compulsion can be legally forced on him, contrary to what petitioners asks from this Court. Such an order would certainly be invalid and illegal. Thus, the lower courts were correct in rejecting the petitioners' offer to buy the encroached land.

Fourth Issue: A Review of Factual Findings Is Unwarranted

Petitioners ask this Court to review the alleged error of the respondent Court in appreciating bad faith on their part. According to them, this is contradictory to the fact that private respondents acquired their lot and discovered the encroachment after petitioners bought their house. After careful deliberation on this issue, this Court finds this petition for review inadequate as it failed to show convincingly a reversible error on the part of the respondent Court in this regard. Thus, for very good reasons, this Court has consistently and emphatically declared that review of the factual findings of the Court of Appeals is not a function that is normally undertaken in petitions for review under Rule 45 of the Rules of Court. Such findings, as a general rule, are binding and conclusive. [20] The jurisdiction of this Court is limited to reviewing errors of law unless there is a showing that the findings complained of are totally devoid of support in the records or that they are so glaringly erroneous as to constitute reversible error.[21]

Even respondent Court has taken note of the inadequacy of the petition before it, as it wryly said:[22]

"The Petition for Review is not certainly a manifestation of clarity nor an example of a well-organized summation of petitioners' cause of action. . . . . .

xxx                    xxx                    xxx

A careful scrutiny of the above issues discloses that they are mere repetitions in a rehashed form of the same issues with the same supporting arguments raised by petitioners when they appealed from the decision of the (MeTC) to the RTC. x x x."

This petition is no different. We share the foregoing sentiments of the respondent Court. In essence, respondent Court merely affirmed the decision of the MeTC. The Court of Appeal's finding of petitioners' bad faith did not alter nor affect the MeTC's disposition. Petitioners want this Court to declare them in good faith and to determine their rights under Article 448, Civil Code. However, the mere fact that they bought their property ahead of the private respondents does not establish this point. Nor does it prove that petitioners had no knowledge of the encroachment when they purchased their property. Reliance on the presumption in Article 526 of the Code is misplaced in view of the declaration of the respondent Court that petitioners are not builders in good faith.

What petitioners presented are mere allegations and arguments, without sufficient evidence to support them. As such, we have no ground to depart from the general rule against factual review.

In sum, the petition has not shown cogent reasons and sufficient grounds to reverse the unanimous ruling of the three lower courts. The MeTC, RTC and the Court of Appeals were all in agreement in sustaining private respondents' rights. And we uphold them.

WHEREFORE, the petition is DENIED.  The assailed Resolution is hereby AFFIRMED.

SO ORDERED.

SECOND DIVISION

[G.R. No. 109215. July 11, 2000]

DOMINICA CUTANDA, SEBASTIAN CUTANDA, JUANARIO CUTANDA, SOTERO CUTANDA, CRISPIN CUTANDA, FLORENCIO CUTANDA, TRINIDAD CUTANDA, NICANOR CUTANDA, GABINA CUTANDA FLORES, and CLAUDIO CUTANDA, petitioners, vs. HEIRS OF ROBERTO CUTANDA, namely, GERVACIO CUTANDA, SOPRONIO C. CUTANDA, JORGE CUTANDA, and CRISPIN G. AVENIDO and COURT OF APPEALS, respondents.

D E C I S I O N

MENDOZA, J.:

This is a petition for review of the decision of the Court of Appeals dated March 31, 1992 in C.A.-G.R. CV No. 24546, insofar as it reverses the decision of the Regional Trial Court, Branch 1, Tagbilaran City declaring petitioners as the true and lawful owners of the subject lands.

The background of this case is as follows:

On August 4, 1988, private respondents brought an action for recovery of possession, accounting and damages against petitioners in the Regional Trial

Court of Tagbilaran City. They alleged[1] that in the 1900’s, their grandfather, Roberto Cutanda, owned two parcels of land in Bohol. One had an area of 31.0929 hectares and was covered by Tax Declaration No. 1246,[2] while the other was 7.0925 hectares and was covered by Tax Declaration No. 1247.[3] Both tax declarations were in Roberto Cutanda’s name. Upon Roberto Cutanda’s death, these lands were inherited by his children, namely: Doque, Diego, Pedro, Andres, and Anastacia, all surnamed Cutanda. Except for Doque who stayed in Bohol and administered the lands, all of Roberto Cutanda’s children established residence in Leyte. In 1987, they returned to Bohol to personally work the inherited lands. Their plan, however, was frustrated as petitioners, who were occupying the lands, refused to leave. Private respondent thus prayed that each be declared owner of 1/5 of the subject real properties and that petitioners be ordered to return to them said properties.

In due time, petitioners filed their answers. One was prepared by the Citizen’s Legal Assistance Office, while the other one, which was the one actually considered during the trial, was prepared by the Bureau of Legal Assistance of the Department of Agrarian Reform. Contending that private respondents had no cause of action, petitioners denied that private respondents’ predecessor-in-interest, Roberto Cutanda, was the original owner of the lands in question. Instead, they claimed that the owner was their uncle and predecessor-in-interest, Anastacio Cutanda. It was alleged that Anastacio Cutanda died without children and that the real properties in question were inherited by his brothers and sisters whose children are the present petitioners. Claiming a better right to possess the subject properties, petitioners alleged that while they occupied the shares which their parents inherited from Anastacio Cutanda, some of them also worked as tenants cultivating the lands of their co-petitioners. They filed a counterclaim in which they sought the recovery of damages from private respondents.[4]

On September 28, 1989, the trial court rendered its decision[5] declaring petitioners to have acquired the ownership of the subject properties through prescription and dismissing private respondents' complaint. The court ordered private respondents to vacate the properties and remove whatever improvements they may have made, to restore petitioners in possession of the lands, and to cease from laying further adverse claims over the lands. As basis for its ruling, the trial court made the following findings:

In the assessment of the evidence of the parties the court finds the evidence of the defendants preponderant and had established

their case against plaintiffs, among the most outstanding facts are as follows:

1. Even plaintiffs document (Exhibit "C") visayan written testament/statement of Quirico Becauan dated February 25, 1935, it admitted that before 1935 Anastacio Cutanda had been in the possession of the land in question;

2. Gervacio Cutanda admitted that the defendants thru their predecessor-in-interest Anastacio Cutanda had squatted on the land since 1933 and since then because his father Roberto Cutanda, the alleged original owner of the land had transferred residence in Leyte, the land was with the defendants. Although, he came back in 1949, he and Sofronio only claimed back the land in 1987;

3. That, it is beyond doubt that the defendants have long been in possession and cultivation of the land as owners whose possession if tacked with Anastacio Cutanda since 1933 up to the present has been for more than 54 years;

4. That, Tax Declaration No. 10434 of Anastacio Cutanda from whom the defendants have inherited the land is dated as far back as 1933 and continuously until the present when different tax declarations were issued in the names of the defendants;

5. That, defendants’ continuous possession, occupation and cultivation of the land is not rebutted, refuted by convincing, sufficient evidence by the plaintiffs whose claim is highly nebulous and unsatisfactory;

6. That, even assuming the plaintiffs have the right over the land in question, the fact that they have slept [on] their right since 1933 up to 1987 by failing to institute an action to recover its ownership and possession, plaintiffs are clearly guilty of laches;

. . . .

8. That, Anastacio Cutanda’s right over the land and succeeded by defendants since 1933 has beyond any cloud of doubt been sufficiently established.[6]

Private respondents appealed to the Court of Appeals. On March 31, 1992, the appellate court rendered a decision[7] which, while affirming the dismissal of the case against petitioners, nonetheless declared that there was no sufficient evidence that they were the owners of the properties. It stated:

However, this Court finds that the trial court has exceeded its jurisdiction in declaring defendants-appellees to be the true and lawful owners of the land in question there being no sufficient evidence on record that they have been in open, continuous, exclusive and notorious possession and occupation of the land under a bona fide claim of ownership for the period required by lawas to acquire ownership thereof by prescription.[8]

Both parties moved for reconsideration of the appellate court’s decision. On February 26, 1993, the Court of Appeals denied their motions for lack of merit. No further action was taken by private respondents so that the decision of the appellate court affirming the dismissal of their action for recovery of possession, accounting and damages became final. On the other hand, petitioners brought the instant petition for review, insofar as the Court of Appeals ruled that no sufficient evidence existed in the records to establish their ownership of the lands.

The sole issue for resolution in this petition is thus whether petitioners presented sufficient evidence to prove their ownership of the lands in question. Petitioners contend that: (1) the findings of fact of the Court of Appeals should not be binding upon this Court as they are in direct contradiction to that of the trial court;[9] (2) the decision of the Court of Appeals does not cite any reason for reversing the trial court’s findings of fact;[10] (3) while agricultural tenancy relations exist between them and the owners of the land, they were also owners of the shares inherited by their parents from Anastacio Cutanda;[11] and (4) as found by the trial court, petitioners and their predecessors have been in possession of the lands since 1933 and have consequently acquired the same through acquisitive prescription.[12]

The petition is meritorious.

First. While both the Court of Appeals and the trial court held that private respondents’ action for recovery of possession (accion publiciana) was already barred, it appears that they relied upon different grounds. For the trial court, the ground was extinctive prescription. Paragraph no. 7 of its findings plainly states that ¾

7. Consequent to laches, plaintiffs’ right to the land having allowed the defendants to possess, cultivate and claim as owners since 1933 up to 1987, their rights if any are lost by extinctive prescription and, therefore, defendants have acquired the rights over the parcels of land by acquisitive prescription.[13]

The Court of Appeals, on the other hand, held private respondents’ action to be barred by laches, thus:

The failure of plaintiff-appellants and their predecessors-in-interest to assert their claim over the disputed properties from the time that Anastacio Cutanda allegedly usurped said lands in 1933 until the instant action was filed in 1988 -- a period of 55 years --constitutes laches and bars this action to recover possession of said properties.[14]

In Maneclang v. Baun,[15] this Court distinguished prescription from laches as follows:

. . . While prescription is concerned with the fact of delay, laches is concerned with the effect of delay. Prescription is a matter of time; laches is principally a question of inequity of permitting a claim to be enforced, this inequity being founded on some change in the condition of the property or the relation of the parties. Prescription is statutory; laches is not. Laches applies in equity, whereas prescription applies at law. Prescription is based on fixed time, laches is not.

Based on this distinction, we hold that prescription, not laches, is the proper ground for holding private respondent’s action to be barred. Art. 1106 of the Civil Code provides that by prescription, one acquires ownership and other real rights through the lapse of time, in the manner and under the conditions laid down by law. In the same way, rights and actions are lost by prescription. There are thus two kinds of prescription: (1) the acquisition of a right by the lapse of time, or acquisitive prescription; and (2) the loss of a right of action by the lapse of time, or extinctive prescription.

Private respondents’ action was an accion publiciana to recover the right of possession and to be declared owners of the subject lands. Their complaint squarely put in issue the ownership of the lands in dispute. It may thus be properly treated as an accion reivindicatoria. As found by the Court of Appeals and by the trial court, however, petitioners’ predecessor-in-interest, Anastacio Cutanda, acquired possession of said lands in 1933. On the other hand, private respondents did not assert ownership over the lands until 1988 ¾ 55 years later, when they filed their present complaint for recovery of possession. It is settled that the remedies of accion publiciana or accion reivindicatoria must be availed of within 10 years from dispossession. Under Art. 555(4) of the Civil Code, the real right of possession is lost after the lapse of 10 years.[16] In Cruz v. Court of Appeals,[17] in which an action for recovery of possession and ownership of lands was brought only after 26 years had elapsed, this Court ruled:

And secondly, whether We consider the complaint of private respondents to recover possession of the property in question asaccion publiciana or accion reivindicatoria, the same has prescribed after the lapse of ten years. After private respondents had abandoned for 26 years the property which is unregistered land, the law as well as justice and equity will not allow them "to lie in wait and spring as in an ambush" to dislodge and dispossess petitioners who during said period made and constructed residences, buildings and other valuable improvements thereon, and enjoying the fruits therefrom.

Hence, insofar as petitioners are concerned, private respondents’ cause of action was barred, not by laches, but by extinctive prescription, regardless of whether their complaint is considered as an accion publiciana or an accion reivindicatoria. As regards the private respondents who did not appeal from the ruling of the Court of Appeals, this question is now final.

Second. As already stated, the Court of Appeals reversed the trial court’s ruling that petitioners had acquired the lands by prescription on the ground that there was no sufficient evidence to prove that petitioners had been in open, continuous and adverse possession of the lands. There is, however, nothing in the evidence to support this finding of the appellate court. To the contrary, the evidence in the record, both documentary and testimonial, shows: (1) that their common ancestor was the late Doque Cutanda, son of Eustaquio Cutanda and Rufina Atup;[18] (2) that Doque Cutanda had several children, namely, Anastacio, Saturnino, Esperidion, Pedro, Honorio, German,

Fortunata, Eustaquia, and Ponciana;[19] (3) that, in his lifetime, Doque Cutanda acquired a parcel of agricultural land consisting of 31.0929 hectares, which was declared under Tax Declaration No. 6983[20] in the name of his eldest child, Anastacio; (4) that Anastacio, who had no children, remained in possession of said land from 1933 until 1968 when he executed a deed of extrajudicial settlement of estate which adjudicated and partitioned said parcel of land among his brothers and sisters;[21] (5) that after 1968, Anastacio’s brothers and sisters worked on the land, as shown by several tax declarations[22] and subsequently, their children and successors, herein petitioners, remained in actual and peaceful possession of said land until 1988 when private respondents filed their action to recover possession of the land; (6) that during such time, petitioners Dominica, Sebastian, Sotero, Januario and Nicanor were cultivating the share of their father while working as agricultural tenants on the shares of their uncles Honorio and German Cutanda;[23] and (7) that petitioners Gabina, Crispin and Claudio Cutanda are the children and heirs of Honorio Cutanda working on their father’s share while petitioners Florencio and Trinidad Cutanda are the children and heirs of German and Esperidion Cutanda, respectively.[24]

The foregoing sufficiently establish that Anastacio Cutanda was in possession of the land covered by Tax Declaration No. 6983, which has an area of 31.0929 hectares, from 1933 up to 1968, or a period of 35 years. Such possession appears to be adverse, continuous and in the concept of an owner because Anastacio Cutanda cultivated the land, thereby, performing an act of ownership over it. It is to be noted that Anastacio’s possession began under the former Civil Code. This fact brings this case squarely under the ruling in Cruz v. Court of Appeals,[25] in which adverse possession of a parcel of unregistered land started in 1938 while the complaint for recovery of possession was filed only in 1964, after 26 years. The trial court dismissed the complaint and declared the adverse possessors as owners of the land. The Court of Appeals, however, reversed the trial court. On appeal, this Court in turn reversed the appellate court. We held that ¾

This contention of the petitioners is impressed with truth and merit as the same is borne out by the records and the transcript thereof which We have previously discussed. We, therefore, find that the ruling of the respondent court dating petitioner’s adverse possession to the year 1953 is contrary to the admission of the private respondents thru counsel, and since petitioners’ possession of the property in question commenced way back in 1938 which was at the time of the old Civil Code was still in force,

the prescriptive period is governed under Section 41 of the Code of Civil Procedure because Article 1116 of the New Civil Code provides that "Prescription already running before the effectivity of this Code (August 30, 1950) shall be governed by laws previously in force." Section 41 of the C.C.P. states:

Sec. 41. Title to land by prescription. -- Ten years of actual adverse possession by any person claiming to be the owner for that time of any land or interest in land, uninterruptedly, continuously for ten years by occupancy, descent, grants or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual possessor of such land a full complete title,   saving to the persons under disabilities the rights, secured by the next section.[26]

Under the Code of Civil Procedure, therefore, ten years of actual adverse possession was required, regardless of how such occupancy may have commenced or continued, before possession ripened into full and complete title over the land. Applying this to the present case, by 1943, ten years after his possession of the subject parcel of land had begun, Anastacio Cutanda became owner of the land in question through acquisitive prescription.

Third. The Court of Appeals limited its review of the evidence to the issue of acquisitive prescription. Petitioners, however, submitted evidence to prove that they were heirs of Anastacio Cutanda’s brothers and sisters, even as some of them were also working as tenants for their co-petitioners. Particularly compelling is the 1968 Deed of Extrajudicial Settlement of Real Estate executed by Anastacio Cutanda which pertinently states that:

WHEREAS, ANASTACIO CUTANDA, single, 90 years of age, with no common-law wife, illegitimate children or otherwise, through his own will desires to adjudicate and partition his three (3) parcels of land to his brothers and sisters or legal heirs, declared under Tax Dec. Nos. R-2485; R-2486; and R-6983 situated at Camambugan, Ubay, Bohol and Saguisinhan, Trinidad, Bohol, respectively, which are described and bounded as follows:

. . . .

Tax Declaration No. 6983, situated at Saguisinhan, Trinidad, Bohol, with an area of 31.0929 hectares more or less: Bounded on the North by Justo Ogayon & creek; or East, by Saguinsihan Creek; on South, by Pablo Ebaoc, Graciano Ebaoc, Diosdado Ebaoc, Gaviro Mumar; and on West by Pablo Ebaoc, Mateo Nuera, Dominga Nuera; with improvements of 15 groups of bamboos.

. . . .

WHEREAS, the brothers, sisters and heirs of said Anastacio Cutanda, through his will and voluntary deed, mutually agree to accept this extrajudicial partition made by said Anastacio Cutanda for the benefit of said brothers, sisters, and heirs of same.

As Anastacio Cutanda had acquired ownership of said parcel of land through the lapse of the period required by law, he could validly adjudicate and partition it among his brothers and sisters who were his only heirs. Petitioners, in turn, as children of Anastacio’s brothers and sisters, acquired ownership of the subject land not through prescription but through hereditary succession.

But while we find sufficient evidence of ownership with respect to that parcel with an area of 31.0929 hectares covered by Tax Declaration No. 6983, we find no similar evidence to support the finding of the trial court that Anastacio Cutanda was also the owner of the other parcel of land consisting of seven hectares. Petitioner Florencio Cutanda himself admitted that he and the other petitioners were only claiming the 31-hectare land. His testimony is as follows:

Q.....And Mr. Witness you will assure us here that this tax declaration No. R-6983 is the only parcel of land owned by either Doque Cutanda or Anastacio Cutanda situated in Trinidad, Cambangay Norte?

A.....That is correct.

Q.....You will not change your answer?

A.....I will not.

Q.....So that Mr. Witness considering that this case now involves two parcels of land, one with an area of 31 hectares and the other

with an area of 7 hectares, you are only claiming the 31 hectares covered by Tax Decl. No. R-6983, am I correct?

A.....Only the 31 hectares.

Q.....You and your co-defendants are not claiming the 7 hectares?

A.....This 7 hectares was already owned and claimed by Honorio Cutanda.

Q.....You mean to tell us that Honorio Cutanda has a previous tax declaration covering this 7 hectares?

A.....Yes, sir.

Q.....But you are not in the possession of that tax declaration?

A.....No, sir.[27]

Moreover, the alleged tax declaration in Honorio Cutanda’s name covering the seven-hectare land was never presented in evidence. For these reasons, with respect to the said seven-hectare land, the ruling of the Court of Appeals that there is no sufficient evidence as to its ownership must be affirmed.

WHEREFORE, the decision of the Court of Appeals is set aside and another one is rendered declaring petitioners to be true and lawful owners of that parcel of land covered by Tax Declaration No. 6983 of the Tax Assessor’s Office of Saguisinhan, Trinidad, Bohol, with an area of 31.0929 hectares. The complaint filed by respondents is dismissed.

SO ORDERED.

DOMINICA CUTANDA V. HEIRS OF ROBERTO CUTANDA

FACTS:Roberto Cutanda owned 2 parcels of land in Bohol, and upon his death, his children became owners

of said land by inheritance. They left Bohol and established residence in Leyte. In 1988, they

returned to Bohol hoping to work on the land that was left to them. However, they discovered that

these lands were already in the possession of their relatives—heirs of their uncles and aunts.

Petitioners averred that the land in question is actually owned by their late uncle, Anastacio

Cutanda, who died without children, and left the lands to his siblings, one of which was Roberto

Cutanda.

Furthermore, they claim rightful ownership of the land as they have been in open, contiguous,

adverse, and uninterrupted possession of these for about 55 years.

The trials court found for the Petitioners. However, the CA reversed the RTC’s decision.

ISSUE:Whether or not the rights of the heirs of Roberto Cutanda have already prescribed, thus, giving

rightful ownership to the Petitioners?

HELD:The action brought by the respondents to the court was one of accion publiciana to recover the right

to possession and to be declared rightful owners of the land. Since the complaint actually put in

issue the ownership of the land, it should thus be treated properly as an accion reinvindicatoria.

Nevertheless, both have already prescribed as these rights are extinguished if not brought within 10

years from dispossession. Therefore, the petitioners have indeed acquired possession and

ownership of the land in question by prescription, as the respondents failed to bring this action only

55 years later.

DOMINICA CUTANDA V. HEIRS OF ROBERTO CUTANDA

335 SCRA 418 

FACTS:PR  brought  an  action  for  recovery  of  possession  of  parcels  of  land  they alleged to have been owned by their grandfather and later on inherited by his  children.    They  intended  to  work  personally  on  the  lands  but  was frustrated as it was being occupied by the petitioners.  PR then prayed that they  be  declared  owners  of  1/5  of  the  subject  real  properties  and  that petitioners be ordered to return to them said properties.   Trial court held that the petitioners owned the land through prescription.    

HELD:Private respondent’s action is barred by prescription.  An accion publiciana to recover the right to possession and to be declared owners of the subject lands.  Their complaint surely put in issue the ownership of the lands.  It may  thus  be  properly  treated  as  an  accion  reivindicatoria.    These  two remedies must be availed of within 10 years from dispossession.

Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

 

G.R. No. 96644 June 17, 1994

HEIRS OF JUAN OCLARIT, namely: FRANCISCA VDA. DE OCLARIT, SOFRONIO OCLARIT, BELACIO OCLARIT, RUFINO OCLARIT, JUANA OCLARIT DE MACALOS, assisted by her husband HILARIO MACALOS, FELISA OCLARIT DE LACRE, assisted by her husband, COSME LACRE; HEIRS OF PAULA OCLARIT DE OCANG, namely: PETRA OCANG and

ALFREDO OCANG, ANGELA OCLARIT DE OCANG, assisted by her husband, CARLOS OCANG, EPIFANIA OCLARIT DE ALMODOBAL, assisted by her husband, URBANO ALMODOBAL, CRESENCIA OCLARIT DE IVARRETA, assisted by her husband, LUCRESIO IVARRETA, NARCISA OCLARIT DE CAGAS, assisted by her husband, JUAN CAGAS, and JUSTO OCLARIT, petitioners, vs.COURT OF APPEALS and ZACARIAS BALASABAS, respondents.

Lord M. Marapao for petitioners.

Urbano Lagumay for private respondent.

 

BIDIN, J.:

Petitioners seek the review on certiorari of the decision of the Court of Appeals promulgated on September 28, 1990, affirming with modification the decision of the Regional Trial Court of Bohol, Branch 2, Tagbilaran City, dismissing their complaint for quieting of title with damages and declaring the defendant (private respondent herein) the owner of the parcels of land subjects of controversy.

In 1953, the late Juan Oclarit, petitioners’ predecessor-in-interest, allegedly purchased from Martin Macalos a parcel of unregistered land located in Antipolo, Garcia-Hernandez, Bohol, with no permanent landmarks or boundaries in consideration of the sum of one hundred (P100.00) pesos. The deed of sale simply described the property as bounded on the north and east by the property of Herminigildo Baja, on the south by Mariano Gales and on the west by a brook.

In 1956, Oclarit bought five more parcels of land located in Antipolo and Ulbujan, also in Garcia-Hernandez, Bohol, from Dalmacio Gales in consideration of the sum of six hundred (P600.00) pesos. Parcel IV thereof is described as follows:

A parcel of an irrigated rice and coconut lands, bounded on the NORTH, by the land of Leon Macalos; EAST, by the land of Mariano Gales; SOUTH, by the land of Pablo Gales, and on the WEST, by the land of Saturnino Gales; containing an area of 9 ares and 28 centares, more or less, without visible landmarks of the boundaries of the same, covered by Tax Declaration No. R-19915 now transferred and declared under the name of the herein VENDEE, JUAN OCLARIT, with the total assessed value of P30.00.

In 1975, the heirs of Oclarit filed an action for the quieting of title and damages against respondent Balasabas before the then Court of First Instance of Bohol, docketed as Civil Case No. 3103. The complaint alleged that in January 1969, private respondent entered the properties subject of the action. Failing to work on the area planted to palay, private respondent climbed the coconut trees, replaced the "J.O." markings on the trees with "F.G.", representing Felipa Gales, his mother, and caused to be recorded in the cadastral survey of the land the name of Felipa Gales as claimant against Juan Oclarit. The heirs of Oclarit considered the acts of private respondent as having cast a cloud of doubt over their title to the property and therefore deprived them of the enjoyment of the fruits of the coconut trees. Petitioners further alleged that the late Juan Oclarit, from the time of the acquisition of said properties, had exercised dominion and ownership thereon openly, peacefully, adversely and uninterruptedly. It was also claimed that the deceased planted coconut trees and other crops on the property, enjoyed their produce and paid the realty taxes on the land which was continued by his heirs after his death.

In his answer, respondent Balasabas claims to have actually and lawfully possessed the disputed parcels of land "since time immemorial". According to respondent, the first parcel of land was owned by his mother, Felipa Gales, by virtue of inheritance, and declared in her name under Tax Declaration No. D-1120; while the second parcel of land was acquired by him from his own mother as evidenced by a deed of absolute sale executed on March 20, 1963 and which he declared in his name under Tax Declaration No. D-1006. In addition, respondent likewise alleged possession of the parcels of land openly, peacefully, adversely and continuously without disturbance from any party until he was molested by the heirs of Oclarit. It was contended that Oclarit himself surreptitiously declared these lands for taxation purposes in his own name.

In the course of the proceedings, the trial court appointed Teotimo Borja, Deputy Provincial Assessor of Bohol, as commissioner for the purpose of determining whether the lands described in the complaint and covered by Tax Declarations Nos. D-13935 and D-13926 overlapped with any of the lands described in the defendant’s affirmative and special defenses and covered by Tax Declarations Nos. D-1120 and D-1006. In 1978, the court-appointed commissioner conducted a relocation survey and an ocular inspection of the properties in controversy in the presence of the heirs of Oclarit, their counsel, respondent Balasabas, a policeman, and adjoining owners Procopio Oclarit, Galicana J. Pagaran, Maxima Macula, Felipe Macula and some disinterested persons. In his report dated May 25, 1979, the commissioner made the following findings and observations:

When plaintiffs were asked the extent of their land under the tax declaration No. D-13935, they pointed to the undersigned that figure in Annex ‘A’ which is embraced from corners 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 back to 1 by a red ball pen broken lines. The area of this is approximately 3,639 square meters (.3639 ha.). The area of the tax declaration No. D-13935 is .0928 ha. This Annex ‘A’, which is made an integral part of this report has been traced from the file of the Bureau of Lands Office in Jagna, Bohol. The personnel in that office informed the undersigned that no Lot numbers have as yet been assigned and that the traverse is not yet computed because it will be done by IBM. This land is partly cocal (on the northeastern portion) and partly riceland. There are thirty (30) coconut trees mostly of which are 40 to 50 years old;

Defendant Zacarias Balasabas pointed the extent of his claim under the tax declaration No. D-1120 as that area in the cadastral survey. In other words he refer(red) to his claims as that figure in Annex ‘A’ embraced by corners 1, a, 2, 3, 4, b, c, d, e, 11, 12, f, 13, 14 to 1 and shaded by pencil diagonal lines and which is titled ‘HRS. OF JUAN OCLARIT VS. FELIPA GALES’ in the cadastral survey. This contains an area of 1,420 square meters (.1420 ha.), more or less. The tax declaration No. D-1120 has an area of .44010 ha.;

Plaintiffs and defendants both claimed the same parcel of land on the western portion of Annex ‘A’ and which is titled ‘FRANCISCA MACALOS VS. ZACARIAS BALASABAS’ in the cadastral survey as that which is represented by their tax declaration Nos. D-13926 and D-1006, respectively. This parcel which is embraced by corners A, B, C, D, E, F, G, H, I, J, K to A contains an area of 3,098 square meters (.3098 ha.), more or less. The tax declaration No. D-13926 in the name of Juan Oclarit contains an area of .0204 ha. and the tax declaration No. D-1006 of defendant has an area of .8147 ha. There are approximately 200 coconut trees many of which are still non-bearing. The contour of this lot is generally hilly. (Rollo, p. 39)

In its decision, the lower court made the following findings: the heirs of Oclarit and Balasabas are laying claim over the same parcels of land; Dalmacio Gales, who sold to Oclarit the parcel of land

covered by Tax Declaration No. 13935, was an uncle of Balasabas’ mother, Felipa Gales; Martin Macalos, the vendor of the land covered by Tax Declaration No. 13926, was the cousin of Balasabas’ grandmother, Guillerma Gales; the area being claimed by the heirs of Oclarit is, per commissioner’s report, approximately 3,639 square meters (.3639 ha.) while Tax Declaration No. 13935 shows that it is only 928 square meters (.0928 ha.) and the area of the second parcel per commissioner’s report is approximately 3,098 square meters (.3098 ha.) while that reflected in Tax Declaration No. 13926 is only 204 square meters (.0204 ha.).

From these findings, the lower court expressed its surprise as to the size of the area being claimed by the heirs of Oclarit according to the commissioner’s report in comparison with the areas shown in Tax Declarations Nos. 13935 and 13926. While recognizing that areas stated in tax declarations are not "approximately exact," the lower court nonetheless considered the discrepancies between the actual areas being claimed and those shown in the tax declarations as "too obvious to be taken with excuse." Moreover, it doubted the credibility of petitioners for their failure to explain why the adjoining owners named in their claim are different from the adjoining owners found by the commissioner. Furthermore, if petitioners were indeed the real owners of the two parcels of land, they would have taken steps for the correction of the smaller areas stated in the tax declarations. Concluding that petitioners were claiming much bigger parcels than what their evidence can support under justifiable circumstances, the trial court thus disposed of the case as follows:

WHEREFORE, finding a preponderance of evidence in favor of the defendant, judgment is hereby rendered:

1 Dismissing the complaint;

2 Declaring the defendant as the owner of the lots covered by Tax Declarations Nos. D-1120 and D-1006 with area of .4010 hectare and .8147 hectare, respectively and ordering the plaintiffs to recognize such ownership by the defendant; and

3 Ordering the plaintiffs to pay the defendant attorney’s fee of P500.00 and litigation expenses of P400.00 and to pay the costs of the proceedings.

SO ORDERED.

On appeal, respondent court ruled that petitioners failed to prove either legal or equitable title to the two parcels of land which are necessary in an action for quieting of title. Petitioners’ claim of ownership was based principally on tax declarations which, however, are not conclusive evidence of ownership.

However, the Court of Appeals disagreed with the trial court’s declaration that private respondent is the owner of the two parcels of land and such ownership should be recognized by petitioners. It considered such conclusion of the lower court as "bereft of any convincing evidence" because tax receipts, tax declarations and survey plans are not conclusive and indisputable bases of ownership. Accordingly, it disposed of the appeal in the following tenor:

WHEREFORE, in view of the foregoing, the decision of the Court a quo dismissing the plaintiffs’ complaint is hereby AFFIRMED. The portions thereof declaring the defendant as the owner of the lots covered by Tax Declarations Nos. D-1120 and D-1006, respectively, and ordering the plaintiffs to pay the defendant attorney’s fee of P=500.00, litigation expenses of P=400.00 and costs of the proceedings are hereby REVERSED and SET ASIDE. Without pronouncement as to cost.

SO ORDERED. (Rollo, p. 40)

Their motion for reconsideration of said decision having been denied, the heirs of Oclarit instituted the instant petition. Private respondent did not appeal the above disposition.

The petition is moored primarily on the following contentions: (a) the filing of Civil Case No. 3103 was the only legal remedy available to petitioners against the "malicious and unwarranted actuations" of private respondent; (b) Oclarit’s undisturbed claim of ownership of the two parcels of land which he acquired in 1953 and 1956, had spanned more than ten years until private respondent disturbed it in 1969; (c) the two parcels of land mentioned by private respondent in his answer are "foreign and alien" to the two parcels which Oclarit bought from Dalmacio Gales and Martin Macalos and because these vendors had been in possession of the property "from time immemorial", the "waters of prescription have set in"; (d) the Court of Appeals failed to appreciate the real worth of Exhibits "N" to "P" otherwise it would have noted that petitioners’ "clear ownership over said two (2) parcels of land in litigation as the description found therein jibed materially" with the averments in the complaint, and (e) the lower court, in a decision in another case, cited (Ramos v. Court of Appeals 112 SCRA 543) holding that tax receipts are strong evidence of possession as no one in his right mind would pay realty taxes year after year for property not in his actual possession.

From the above submissions, it is at once apparent that petitioners assail the factual findings of both courts below. However, there is no basis for considering this case as an exception to the general rule that the factual findings of the Court of Appeals are binding on and are not reviewable by this Court (Oporto v. Court of Appeals, 208 SCRA 878 [1992]). A careful review of the decisions below do not show that both courts overlooked essential facts which, if considered, would have changed the outcome of the case. Moreover, the matter of giving credence to evidence presented is best addressed by the trial judge who is in a better position than the appellate court to appreciate the weight and evidentiary value of the testimonies of witnesses who have appeared before him (Sapu-an v. Court of Appeals, 214 SCRA 701 [1992]). In civil cases, the lower court must lean towards a party who successfully presents preponderance of evidence in his favor.

It is thus too late in the day for petitioners to claim that the parcels of land which Oclarit had bought are "alien" or different from the parcels which private respondent had allegedly acquired from his mother both by inheritance and by purchase. This is clearly a factual issue which is beyond the ambit of this Court’s jurisdiction.

It was precisely for the purpose of pointing out with particularity the parcels of land involved that the lower court appointed a commissioner whose findings may be adopted in toto by the trial court (See: Apurillo v. Garciano, 28 SCRA 1054). Had the petitioners been in possession of solid evidence that the parcels of land they are claiming are "alien" or "foreign" to those declared by private respondent as his, they should have questioned the commissioner’s report which was based on the relocation survey and ocular inspection which were conducted in their presence. Moreover, petitioners’ claim that their property is different from those of private respondent’s is indeed antithetical to their filing of the complaint for quieting of title — there would not have been any basis for claiming that private respondent cast a cloud of doubt to their title over their two parcels of land.

More, the deed of sale wherein Martin Macalos conveyed to Oclarit a parcel of land did not even indicate with particularity the area of the land covered thereby. This explains why they indiscriminately pointed at boundaries which are even beyond what could have been bought by Oclarit. Although it is true that what defines a piece of land is not the area mentioned in its description but the boundaries therein laid down (Vda. de Tan v. Intermediate Appellate Court, 213 SCRA 95 [1992]), in controversial cases as in this case where there appears to be an overlapping of boundaries, the actual size of the property gains importance. Thus, the lower court correctly stressed

that it would have done petitioners some good had they correctly specified even in their tax declarations the areas of the land they were claiming. It is well settled that anyone who claims that he has a better right to the property, must prove both ownership and identity of the said property (Beo v. Court of Appeals, 200 SCRA 574 [1991], citing Flores v. Intermediate Appellate Court, 178 SCRA 717 [1989]). An area delimited by boundaries properly identifies a parcel of land.

With regard to tax declarations as bases for claim of ownership, petitioners capitalize on what was obviously anobiter in (Ramos v. Court of Appeals) (supra) that no one in his right mind would be continuously paying taxes for property that is not in his actual possession. On the contrary, any person who claims ownership by virtue of tax declarations must also prove he is in actual possession of the property. Thus, proof that the property involved had been declared for taxation purposes from 1908 to 1945, did not constitute proof of possession, nor is it proof of ownership in the absence of the claimant’s actual possession of said property (De Luna v. Court of Appeals, 212 SCRA 276 [1992]).

In the same vein, tax receipts and declarations of ownership for taxation purposes become strong evidence of ownership acquired by prescription when accompanied by proof of actual possession of the property (Tabuena v. Court of Appeals, 196 SCRA 650 [1991]; Director of Lands v. Intermediate Appellate Court, 209 SCRA 214 [1992]).

As earlier stated, private respondent did not appeal from the adverse decision of the appellate court. Yet, respondent ventures to implore this Court to nullify and reverse the decretal portion of the decision subject of this petition and to declare him the owner of the lots covered by his Tax Declarations Nos. D-1120 and D-1006. This cannot be legally done.

Settled is the rule that a party is barred from assailing the correctness of a judgment not appealed from by him. An appellee may only make counter statement of errors to sustain the judgment on other grounds but not to adduce arguments which would otherwise modify or reverse the same, for in such case, an appeal must have been seasonably filed (Itogon-Suyoc Mines v. NLRC, 117 SCRA 523 [1982] and cases cited therein). There being no appeal taken by private respondent from the adverse judgment of respondent court, the decision has become final as against him and can no longer be reviewed, much less reversed, by this Court. That respondent may have been in possession of the disputed properties since 1965 is of no moment. This Court is not a cadastral court before which respondent can seek confirmation of title.

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

SO ORDERED.

OCLARIT V. COURT OF APPEALS233 SCRA 239

 

FACTS:Petitioners instituted an action for reconveyance against the heirs of Neri.  Previously, there was an agreement entered into by Neri with the heirs.  In the said agreement, Neri was a vendee-a-retro who has been entrusted the possession  of  parcel  of  land  for  14  years.    After  said  period,  he  would return  possession  to  the  petitioners.    The  trial  court  decided  in  favor  of petitioners.   

The  CA  reversed,  saying  that  petitioner  failed  to  show preponderance of evidence to support their claim of absolute ownership.  

HELD:In  able  to  maintain  an  action  for  recovery  of  ownership,  the  person  who claims  that he has a better right of the property must prove not only his ownership of the property claimed but also the identity thereof, fixing the identity of the land claimed by describing the location, area and boundaries thereof.    What  really  defines  a  parcel  of  land  isn’t  the  area  mentioned  in  its description but the boundaries therein laid down, as enclosing the land and indicating its limits.

HEIRS OF JUAN OCLARIT V. CA

FACTS:Juan Oclarit purchased an unregistered land in Bohol for P100 from Macalos. This particular land did

not have specified boundaries, as it was only indicated that the borders were a brook, lands of

Gales, and another of Baja. He subsequently purchased 5 more unregistered parcels of land from

Gales, one of which was an irrigated rice and coconut lands, which is now the subject of the action.

Balasabas apparently entered the land about 15 years later and replaces the J.O. labels on top of

the trees with ―F.G.‖ (Felipa Gales, his mother). The heirs of Oclarit then filed an action for the

quieting of the title and damages against Balasabas, averring that Oclarit exercised dominion and

ownership openly, peacefully, adversely and uninterrupted. The deceased even planted coconut

trees and other crops on the land, enjoyed their fruits and even paid realty tax on the land.

RTC initially found for Balasabas after having a Commissioner survey the lands and discovered the

discrepancy between the boundaries indicated in the Deed of Sales and the one written on the tax

declarations. The CA, however, reversed the decision, and ruled that Oclarit is the rightful owner of

the land.

ISSUE:Whether or not the lands claimed by Balasabas are actually ―foreign and alien‖ to the lands

claimed by Oclarit, making these lands actually his property?

HELD:While it is true that tax declarations are not strong proof to claim one’s property as his, it will stand in

court should these tax declarations be coupled with one’s exercise of ownership, such as those

proven by Oclarit’s heirs.

Furthermore, although what defines a piece of land is not the area mentioned in its descriptions, but

the boundaries laid down, in cases such as this one, where the boundaries are unclear, the actual

size of the land gains importance.

THIRD DIVISION

[G.R. No. 138971.  June 6, 2001]

PHILIPPINE ECONOMIC ZONE AUTHORITY (PEZA), petitioner, vs. HON. RUMOLDO R. FERNANDEZ, Regional Trial Court of Lapu-Lapu City (Branch 54); and the Heirs of the Deceased Spouses JUAN CUIZON and FLORENTINA RAPAYA, respondents.

D E C I S I O NPANGANIBAN, J.:

An action for reconveyance of land, an equitable remedy recognized under our land registration laws, is subject to the applicable rules on prescription. Moreover, the right to pursue such reivindicatory action may be defeated when the property sought to be recovered has been conveyed to an innocent purchaser for value.

The Case

Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, seeking to set aside the June 8, 1999 Decision[1] of the Court of Appeals (CA) in CA-GR SP No. 47575.  In the said Decision, the CA sustained the January 12, 1998 [2] and the March 31, 1998[3] Orders of the Regional Trial Court of Lapu-Lapu City (Branch 54) in Civil Case No. 4534-L, which denied petitioner’s Motion to Dismiss and Motion for Reconsideration, respectively.  The dispositive portion of the CA Decision reads as follows:

“WHEREFORE, [there being] no abuse of discretion committed by respondent court, the instant petition is hereby DISMISSED.”

The Facts

The subject of the present controversy is Lot No. 4673 of the Opon Cadastre situated in Lapu-Lapu City, covered by Original Certificate of Title (OCT) No. RO-2537 (May 19, 1982) and registered in the names of Florentina Rapaya, Victorino Cuizon, Isidro Cuizon, Ursula Cuizon, Benito Lozano, Isabel Lozano, Pelagia Lozano, Augusto Lozano, Valeriano Ybañez, Jesus Ybañez, Numeriano Ybañez, Martino Ybañez, Eutiquio Patalinghug, Celedonio Patalinghug, Santiago Patalinghug and Silvino Patalinghug.  The lot has an area of 11,345 square meters, more or less.

On May 15, 1982, Jorgea Igot-Soroño, Frisca Booc and Felix Cuizon executed an Extrajudicial Partition, in which they declared themselves as the only surviving heirs of the registered owners of the aforesaid lot.  Consequently, they were issued TCT No. 12467 on July 8, 1982.

Considering that the said lot was among the objects of expropriation proceedings docketed as Civil Case No 510-L and pending before it, Branch XVI of the Regional Trial Court (RTC) of Lapu-Lapu City rendered a partial Decision on August 11, 1982.  In that Decision, the RTC approved the Compromise Agreement entered into between the Export Processing Zone Authority (EPZA) and the new registered owners of Lot No. 4673; namely, Jorgea Igot-Soroño, Frisca Booc and Felix Cuizon.  In accordance with the approved Compromise Agreement, EPZA would pay P68,070 as just compensation for the expropriation of the subject property, which was to be used for an export processing zone to be established in Lapu-Lapu City.

As a consequence of the RTC Decision, petitioner acquired title over Lot No. 4673 and the corresponding Transfer Certificate of Title (TCT) No. 12788 issued by the Register of Deeds of Lapu-Lapu City on October 13, 1982.

On July 29, 1996, private respondents filed with the RTC of Lapu-Lapu City a Complaint for Nullity of Documents, Redemption and Damages against petitioner and Jorgea-Igot Soroño et al.  Docketed as Civil Case No. 4534-L, the Complaint alleged that herein private respondents had been excluded from the extrajudicial settlement of the estate.  It likewise sought the nullification of several documents, including TCT No. 12788 dated October 13, 1992, issued in the name of herein petitioner.

On February 17, 1997, petitioner filed a Motion to Dismiss the Complaint on the ground of prescription.  This Motion was denied by respondent judge in the Order dated January 12, 1998.  A Motion for Reconsideration thereof was likewise denied in the Order dated March 31, 1998.

On April 30, 1998, petitioner elevated the matter to the Court of Appeals through a Petition for Certiorari.  As earlier noted, the CA dismissed the Petition.

Hence, this recourse.[4]

The CA Ruling

In denying the Petition, the CA ratiocinated as follows:

“Civil Case No. 4534-L although instituted in the guise of a complaint for Nullity of Documents, Redemption and Damages is in effect an action for reconveyance of the property to plaintiffs of a portion which rightfully belong to them.  It would be against good reason and conscience not to hold that defendants, Francisca ‘Frisca’ Booc, heirs of deceased Jorg[e]a Igot-Soronio and heirs of Felix Cuizon committed a breach of trust which enabled them to execute a Deed of Extrajudicial Partition[,] Special Power of Attorney and Deed of Absolute Sale in favor of EPZA to the prejudice of the plaintiffs as their co-heirs.  Therefore, in an action like this case, the private respondents may be ordered to make reconveyance of the property to the person rightfully entitled to it.

“It is undeniable that defendants defrauded plaintiffs by falsely representing that they were the only heirs of deceased Juan Cuizon and Florentina Rapaya, succeeded in having the original title cancelled and enabling them to appropriate the land in favor of EPZA and a new one issued in the name of the latter (EPZA).  This way of acquiring title create[s] what is called ‘constructive trust’ in favor of the defrauded party and grants the latter the right to vindicate [itself] x x x regardless of the lapse of time.  Thus, it has been held that if a person obtain(s) a legal title to the property by fraud or concealment, courts of equity will impress upon the title a so called ‘trust’ in favor of the defrauded party.  In fact, it has long been held that a co-heir who through fraud, succeeds in obtaining a certificate of title in his name to the prejudice of his co-heirs, is deemed to hold the land in trust for the latter.  The excluded heir’s action is imprescriptible.

“And if the action involve(s) the declaration of the nullity or inexistence of a void or inexistent contract which became the basis for the fraudulent registration of the subject property, then the action is imprescriptible.  This finds codal support in Article 1410 of the Civil Code, which declares that the action or defense for the declaration of the inexistence of a void contract does not prescribe.

“As to the constructive notice rule alleged by the petitioner, (the) Supreme Court in the case of Juan vs. Zuniga, citing Sevilla vs. Angeles, has this to say:

'While this ruling is correct as applied to ordinary actions by recovery of real property which is covered by a torrens title upon the theory that its registration under our registration system has the effect of constructive notice to the whole world, the same cannot be applied x x x when the purpose of the action is to compel a trustee to convey the property registered in his name for the benefit of the cestui que trust.  In other words, the defense of prescription cannot be set up in an action whose purpose is to recover property held by a person for the benefit of another.’

The Issues

Petitioner interposes the following issues for the consideration of this Court:“I

Whether or not the appellate court erred in not holding that private respondents’ claim against expropriated property had prescribed.

“II

Whether or not the appellate court erred in not holding that reconveyance does not lie against the expropriated property.”[5]

The Court’s Ruling

The Petition is meritorious.

First Issue:     Prescription

Petitioner avers that private respondents’ claim against the subject property has already prescribed, because the two-year period within which an unduly excluded heir may seek a new settlement of the estate had already lapsed by the time private respondents filed their action with the trial court.  Petitioner further argues that private respondents received constructive notice in view of the registration of the extrajudicial partition with the Registry of Deeds.  According to petitioner, the two-year period commenced from July 8, 1982, the date of inscription of the extrajudicial settlement on OCT No. 2537.

The pertinent provisions of Section 4, Rule 74 of the Rules of Court, are reproduced for easy reference, as follows:

“Section 4.  Liability of distributees and estate. -  If it shall appear at any time within two (2) years after the settlement and distribution of an estate in accordance with the provisions of either of the first two sections of this rule, that an heir or other person has been unduly deprived of his lawful participation in the estate, such heir or such other person may compel the settlement of the estate in the courts in the manner hereinafter provided for the purpose of satisfying such lawful participation.  And if within the same time of two (2) years, it shall appear that there are debts outstanding against the estate which have not been paid, or that an heir or other person has been unduly deprived of his lawful participation payable in money, the court having jurisdiction of the estate may, by order for that purpose, after hearing, settle the amount of such debts or lawful participation and order how much and in what manner

each distributee shall contribute in the payment thereof, and may issue execution, if circumstances require, against the bond provided in the preceding section or against the real estate belonging to the deceased, or both.  Such bond and such real estate shall remain charged with a liability to creditors, heirs, or other persons for the full period of two (2) years after such distribution, notwithstanding any transfers of real estate that may have been made.” (Emphasis supplied)

A perusal of the foregoing provision will show that persons unduly deprived of their lawful participation in a settlement may assert their claim only within the two-year period after the settlement and distribution of the estate.  This prescription period does not apply, however, to those who had no part in or had no notice of the settlement.  Section 4, Rule 74 of the Rules of Court, is not meant to be a statute of limitations.  Moreover, by no reason or logic can one contend that an extrajudicial partition, being merely an ex parte proceeding, would affect third persons who had no knowledge thereof.[6] Be that as it may, it cannot be denied, either, that by its registration in the manner provided by law, a transaction may be known actually or constructively.

In the present case, private respondents are deemed to have been constructively notified of the extrajudicial settlement by reason of its registration and annotation in the certificate of title over the subject lot.  From the time of registration, private respondents had two (2) years or until July 8, 1984, within which to file their objections or to demand the appropriate settlement of the estate.

On the matter of constructive notice vis-à-vis prescription of an action to contest an extrajudicial partition, a leading authority on land registration elucidates as follows:

“While it may be true that an extrajudicial partition is an ex parte proceeding, yet after its registration under the Torrens system and the annotation on the new certificate of title of the contingent liability of the estate for a period of two years as prescribed in Rule 74, Section 4, of the Rules of Court, by operation of law a constructive notice is deemed made to all the world, so that upon the expiration of said period all third persons should be barred [from going] after the particular property, except where title thereto still remains in the names of the alleged heirs who executed the partition tainted with fraud, or their transferees who may not qualify as ‘innocent purchasers for value’.  If the liability of the registered property should extend indefinitely beyond that period, then such constructive notice which binds the whole world by virtue of registration would be meaningless and illusory. x x x.”[7] (Emphasis supplied)

The only exception to the above-mentioned prescription is when the title remains in the hands of the heirs who have fraudulently caused the partition of the subject property or in those of their transferees who cannot be considered innocent purchasers for value.

In this regard, title to the property in the present case was no longer in the name of the allegedly fraudulent heirs, but already in that of an innocent purchaser for value – the government.  Moreover, the government is presumed to have acted in good faith in the

acquisition of the lot, considering that title thereto was obtained through a Compromise Agreement judicially approved in proper expropriation proceedings.

Even assuming that there was in fact fraud on the part of the other heirs, private respondents may proceed only against the defrauding heirs, not against petitioner which had no participation in or knowledge of the alleged fraud.  The fact that the co-heirs’ title to the property was fraudulently secured cannot prejudice the rights of petitioner which, absent any showing that it had knowledge or participation in the irregularity, is considered a purchaser in good faith and for value.[8]

The remedy of an owner alleged to have been prejudiced or fraudulently deprived of property that was subsequently sold to an innocent purchaser for value is an action for damages against the person or persons who perpetrated the fraud.[9]

Second Issue:     Limitations on Reconveyance

The law recognizes the right of a person, who, by adjudication or confirmation of title obtained by actual fraud, is deprived of an estate or an interest therein. [10]Although a review of the decree of registration is no longer possible after the one-year period from its entry expires, still available is an equitable remedy to compel the reconveyance of property to those who may have been wrongfully deprived of it.[11] This equitable remedy afforded by law is not without limitations, however.

An action for reconveyance resulting from fraud prescribes four years from the discovery of the fraud; such discovery is deemed to have taken place upon the issuance of the certificate of title over the property.  Registration of real property is considered a constructive notice to all persons and, thus, the four-year period shall be counted therefrom.[12] Clearly then, private respondents’ action for reconveyance based on fraud has already prescribed, considering that title to said property had been issued way back on August 11, 1982, while the reivindicatory suit was instituted only on July 29, 1996.

Even an action for reconveyance based on an implied or a constructive trust would have already prescribed just the same, because such action prescribes ten (10) years from the alleged fraudulent registration or date of issuance of the certificate of title over the property.[13] The imprescriptibility of an action for reconveyance based on implied or constructive trust applies only when the plaintiff or the person enforcing the trust is in possession of the property.  In effect, the action for reconveyance is an action to quiet the property title, which does not prescribe.[14] Undisputedly, private respondents are not in possession of the disputed property.  In fact, they do not even claim to be in possession of it, even if to do so would enable them to justify the imprescriptibility of their action.

Accordingly, the CA Decision’s reliance on Juan v. Zuñiga,[15] as regards the imprescriptibility of an action for reconveyance based on implied or constructive trust, is utterly misplaced in the light of the foregoing rulings of the Court declaring a ten-year period of prescription for such action.  Moreover, the principle enunciated therein has no application to the instant case, considering that the supposed “trustee” herein has effectively repudiated the so-called “trust” by directly performing an act of ownership; that is, by conveying the property to

the government through expropriation.  An action to compel, for the benefit of the cestui que trust, the conveyance of property registered in the trustee’s name does not prescribe unless the trustee repudiates the trust.[16] Thus, private respondents cannot invoke the imprescriptibility of their action for reconveyance, irrespective of their basis for it.

Finally, it must be remembered that reconveyance is a remedy of those whose property has been wrongfully or erroneously registered in the name of another. Such recourse, however, cannot be availed of once the property has passed to an innocent purchaser for value.  For an action for reconveyance to prosper, theproperty should not have passed into the hands of an innocent purchaser for value.[17]

Indubitably, we find that the property has already been conveyed to the government in appropriate expropriation proceedings, the regularity or validity of which has not been questioned.  Petitioner should, therefore, enjoy the security afforded to innocent third persons under our registration laws.  Equally important, its title to the property must be rightfully preserved.

Hence, private respondents’ action to recover the subject property from the government cannot be maintained, not only because of the prescription of the action, but on account of the protection given to innocent purchasers for value granted under our land registration laws.  Indeed, the inevitable consequences of the Torrens system of land registration must be upheld in order to give stability to it and provide finality to land disputes.

This ruling notwithstanding, private respondents are not without recourse.  They may sue for damages their co-heirs who have allegedly perpetrated fraud in Civil Case No. 4534-L pending before the RTC.  The right and the extent of damages to be awarded to private respondents shall be determined by the trial court, subject to the evidence duly established during the proceedings.

WHEREFORE, the Petition is hereby GRANTED and the assailed Decision of the Court of Appeals REVERSED.  The Orders of the Regional Trial Court of Lapu-Lapu City (Branch 54) in Civil Case No. 4534-L, dated January 12, 1998 and March 31, 1998, are SET ASIDE and the said Civil Case, as against petitioner, is DISMISSED.  No costs.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

 

G.R. No. 106251 November 19, 1993

CHIAO LIONG TAN, petitioner, vs.THE HONORABLE COURT OF APPEALS, HON MANUEL T. MURO, Presiding Judge, RTC of Manila, Branch 54 and TAN BAN YONG, respondents.

Joaquin M. Arao for petitioner.

Macavinta & Sta. Ana Law Offices for private respondent.

 

NOCON, J.:

Petitioner seeks in this petition the reversal of the Court of Appeals' decision dated May 15, 1992 in CA-G.R. CV No. 29982 affirming the unfavorable decision of the trial court 1 in his suit for replevin and damages.

Petitioner Chiao Liong Tan claims to be the owner of a motor vehicle, particularly described as Isuzu Elf van, 1976 Model with Motor No. 44999-2 and Chassis No. 9646780 which he purchased in March, 1987. As owner thereof, petitioner says he has been in possession, enjoyment and utilization of the said motor vehicle until it was taken from him by his older brother, Tan Ban Yong, the private respondent herein.

Petitioner relies principally on the fact that the Isuzu Elf van is registered in his name under Certificate of Registration No. 1501909. He claims in his testimony before the trial court that the said vehicle was purchased from Balintawak Isuzu Motor Center for a price of over P100,000.00; that he sent his brother to pay for the van and the receipt for payment was placed in his (petitioner's) name because it was his money that was used to pay for the vehicle; that he allowed his brother to use the van because the latter was working for his company, the CLT Industries; and that his brother later refused to return the van to him and appropriated the same for himself.

On the other hand, private respondent testified that CLT Industries is a family business that was placed in petitioner's name because at that time he was then leaving for the United States and petitioner is the remaining Filipino in the family residing in the Philippines. When the family business

needed a vehicle in 1987 for use in the delivery of machinery to its customers, he asked petitioner to look for a vehicle and gave him the amount of P5,000.00 to be deposited as down payment for an Isuzu Elf Van which would be available in about a month. After a month, he himself paid the whole price out of a loan of P140,000.00 which he obtained from his friend Tan Pit Sin. Inasmuch as the receipt for the downpayment was placed in the name of petitioner and since he was still on good terms with him, private respondent allowed the registration of the vehicle in petitioner's name. It was also their understanding that he would keep the van for himself because CLT Industries was not in a position to pay him. Hence, from the time of the purchase, he had been in possession of the vehicle including the original registration papers thereof, but allowing petitioner from time to time to use the van for deliveries of machinery.

Tan Pit Sin who had known private respondent since 1968, not only because they were classmates but also because of their business dealings with each other, confirmed that private respondent borrowed from him P140,000.00 in March, 1987 to buy an Isuzu Elf van. In fact, he had borrowed said vehicle for a few times.

Gina Lu, an employee of the Balintawak Isuzu Motors, testified that private respondent paid the balance of the purchase price of the Isuzu Elf van in the amount of P133,000.00 but the receipt was issued in the name of Chiao Liong Tan to make the records consistent because it was the latter who made the deposit of P5,000.00. Thereafter, the Isuzu Elf van was released to him.

After hearing, the trial court found for private respondent. The dispositive portion of the decision reads as follows:

WHEREFORE, judgment is hereby rendered declaring defendant Tan Ban Yong to be the owner of and entitled to the possession of the vehicle described in par. 2 of the Complaint, and the plaintiff is hereby ordered to deliver possession thereof to the said defendant or in the alternative if such delivery cannot be made, to the sum of P138,000.00 as the value of the vehicle taking into account the depreciation of the vehicle but offset by the inflation rate; in either alternative, plaintiff is also ordered to pay to said defendant consequential damages of P20,000.00 for the latter having been deprived of the possession and use of the vehicle and to pay the costs. All amounts adjudged herein, except costs, shall bear interest at the legal rate from the date of this decision, until delivery of the vehicle or the alternative payment of the value thereof as well as payment of consequential damages is paid; the interest applies to the value of the vehicle if return thereof is delayed. No cost. 2

Finding no merit in the appeal, the respondent Court of Appeals affirmed the decision of the trial court. Undaunted by his successive failures, petitioner comes to us and raised the following error allegedly committed by the respondent Court of Appeals, to wit:

1. . . . in finding the testimonies of private respondent's witnesses credible;

2. . . . in disregarding the Certificate of Registration of the subject motor vehicle as proof of ownership by the petitioner-appellant. 3

Since the Court of Appeals merely affirmed the trial court's assessment of the credibility of the witnesses that testified before it, petitioner is in effect questioning the factual findings of said court and its appraisal of their testimony which this Court cannot review, its jurisdiction being limited to questions of law. The considerable weight given to the findings of the trial court is not without any reason. It had the opportunity to observe the demeanor of witnesses which is usually not reflected in the transcript of records. The profundity of the conclusions thus reached is just the result of such

observance. When the Court of Appeals affirmed said findings, it goes to show that no misapprehension of facts was committed as said Court has the power to scrutinize said factual findings under existing rules of procedure.

In concluding that the testimonies of Tan Ban Yong, Tan Pit Sin and Gina Lu cast doubt on the petitioner's ownership of the motor vehicle in question, both the trial court and the Court of Appeals attached significance to their respective interlocking accounts on how the motor vehicle was acquired, complete with the financing source and mode of repayment. Respondent Tan Ban Yong's declaration that he borrowed P140,000.00 from Tan Pit Sin and paid the balance of the purchase price of the motor vehicle himself to Gina Lu of the Balintawak Isuzu Motors, is corroborated by the above-mentioned persons themselves. Tan Pit Sin not only confirmed the loan but also stated that the same was paid in three (3) months; P50,000.00 on the first payment; another P50,000.00 on the second payment and P40,000.00 on the last payment. 4 Gina Lu, who testified at the instance of petitioner, declared that the downpayment of P5,000.00 was paid by petitioner and so the receipt for the same was issued in his name but the balance of P133,000.00 was paid by private respondent and to make the record consistent, she issued the receipt in the name of petitioner again.

In contrast to the clear and categorical averments of private respondent and the witnesses in this case negating petitioner's ownership of the motor vehicle in question, petitioner's averments before the trial court and this Court are not only disparate but conflicting. In his testimony below, petitioner averred that he used his own money to purchase the motor vehicle by paying the sum of P100,000.00, 5 which testimony is negated by his admission on page 5 of his petition 6 before this Court that private respondent borrowed money from Tan Pit Sin with which to purchase the subject motor vehicle. Then, in his pleading before the court below, particularly in his reply to the answer of private respondent, petitioner alleged that the motor vehicle was intended for his exclusive use and not to service the family business. 7 And yet , in his petition before this Court, he claimed that the subject motor vehicle was purchased for CLT Industries, which he solely owned and accordingly, registered in the latter's name. 8 On top of these entangled averments, petitioner did not have in his possession the Certificate of Registration of the motor vehicle and the official receipt of payment for the same, thereby lending credence to the claim of private respondent who has possession thereof, that he owns the subject motor vehicle.

A certificate of registration of a motor vehicle in one's name indeed creates a strong presumption of ownership. For all practical purposes, the person in whose favor it has been issued is virtually the owner thereof unless proved otherwise. In other words, such presumption is rebuttable by competent proof.

The New Civil Code recognizes cases of implied trust other than those enumerated therein. 9 Thus, although no specific provision could be cited to apply to the parties herein, it is undeniable that an implied trust was created when the certificate of registration of the motor vehicle was placed in the name of the petitioner although the price thereof was not paid by him but by private respondent. The principle that a trustee who puts a certificate of registration in his name cannot repudiate the trust by relying on the registration is one of the well-known limitations upon a title. A trust, which derives its strength from the confidence one reposes on another especially between brothers, does not lose that character simply because of what appears in a legal document.

Even under the Torrens System of land registration, this Court in some instances did away with the irrevocability or indefeasibility of a certificate of title to prevent injustice against the rightful owner of the property. 10

It is true that the judgment 11 in a replevin suit must only resolve in whom is the right of possession. Primarily, the action of replevin is possessory in character and determined nothing more than the right of possession. However, when the title to the property is distinctly put in issue by the defendant's plea and

by reason of the policy to settle in one action all the conflicting claims of the parties to the possession of the property in controversy, the question of ownership may be resolved in the same proceeding.

Procedure-wise, the Court observes that the action by petitioner as plaintiff in the trial court was only one for Replevin and Damages. Since replevin is only a provisional remedy where the replevin plaintiff claims immediate delivery of personal property pending the judgment of the trial court in a principal case, 12 the petitioner should have filed in the trial court as a main case an action to recover possession of the Isuzu Elf van which was in the possession of the private respondent. Logically, the basis of petitioner's cause of action should have been his ownership of said van.In the State of California, from whose Code of Procedure 13 we copied our rule on replevin, their old replevin rule which allowed the immediate delivery of the chattel at the commencement of the action upon application with bond by the replevin plaintiff had already been struck down as early as July 1, 1971 in the case of Blair v. Pitchess. 14 As in fact, on June 12, 1972 when the United States Supreme Court struck down as unconstitutional the Florida and Pennsylvania replevin statutes in Fuentes v. Shevin, 15 most of the states, on their own, changed their replevin statutes to include a mandatory preliminary hearing before the writ could be issued, similar to our mandatory preliminary hearing before the writ of preliminary injunction can be issued.16

If that had been the case in this jurisdiction, then the trial judge would have discovered right away at the preliminary hearing that private respondent should have immediately staked his claim of ownership and that would have created serious doubts about petitioner's claim of ownership. Most likely, the writ would not have been issued and the complaint would have been dismissed motu proprio by the trial court upon the discovery that the petitioner did not have a principal case therein. As it is, the complaint proceeded its course to the detriment of private respondent.

Finally, although a "replevin" action is primarily one for the possession of personality, yet it is sufficiently flexible to authorize a settlement of all equities between the parties, arising from or growing out of the main controversy. 17Thus, in an action for replevin where the defendant is adjudged entitled to possession, he need not go to another forum to procure relief for the return of the replevied property or secure a judgment for the value of the property in case the adjudged return thereof could not be had. Appropriately, the trial court rendered an alternative judgment.

WHEREFORE, the questioned decision being in accordance with the law, the instant petition for review is hereby DENIED for lack of merit.

SO ORDERED.