Dioscordo Carbonilla vs. Marcelo Abiera, et al., G.R. No.

177637, July
26, 2010

Respondents vehemently denied petitioners allegation that they

possessed the building by mere tolerance of the previous owners. Instead,
they asserted that they occupied the building as owners, having inherited
the same from Alfredo Abiera and Teodorica Capistrano, respondent Marcelos
parents and respondent Maricris grandparents. They maintained that they
have been in possession of the building since 1960, but it has not been
declared for taxation purposes

claim that their predecessors had been in prior possession of the

building since 1960 and that they have continued such possession up to the
present.

Without a doubt, the registered owner of real property is entitled to its

possession. However, the owner cannot simply wrest possession thereof from
whoever is in actual occupation of the property. To recover possession, he
must resort to the proper judicial remedy and, once he chooses what action
to file, he is required to satisfy the conditions necessary for such action to
prosper.

A requisite for a valid cause of action in an unlawful detainer case is

that possession must be originally lawful, and such possession must have
turned unlawful only upon the expiration of the right to possess.[17] It must be
shown that the possession was initially lawful; hence, the basis of such lawful
possession must be established. If, as in this case, the claim is that such
possession is by mere tolerance of the plaintiff, the acts of tolerance must be
proved.

Petitioner failed to prove that respondents possession was based on his

alleged tolerance. He did not offer any evidence or even only an affidavit of
the Garcianos attesting that they tolerated respondents entry to and
occupation of the subject properties. A bare allegation of tolerance will not
suffice. Plaintiff must, at least, show overt acts indicative of his or his
predecessors permission to occupy the subject property. Thus, we must
agree with the CA when it said:
 A careful scrutiny of the records revealed that herein
respondent miserably failed to prove his claim that petitioners
possession of the subject building was by mere tolerance as
alleged in the complaint. Tolerance must be [present] right from
the start of possession sought to be recovered to be within the
purview of unlawful detainer. Mere tolerance always carries with
it permission and not merely silence or inaction for silence or
inaction is negligence, not tolerance.[18]

In addition, plaintiff must also show that the supposed acts of tolerance
have been present right from the very start of the possessionfrom entry to
the property. Otherwise, if the possession was unlawful from the start, an
action for unlawful detainer would be an improper remedy.[19] Notably, no
mention was made in the complaint of how entry by respondents was
effected or how and when dispossession started. Neither was there any
evidence showing such details.

present petitioner has instituted an unlawful detainer case

against respondents. It is an established fact that for more than
three decades, the latter have been in continuous possession of
the subject property, which, as such, is in the concept of
ownership and not by mere tolerance of petitioners father. Under
these circumstances, petitioner cannot simply oust respondents
from possession through the summary procedure of an ejectment
proceeding.

Instructive on this matter is Carbonilla v. Abiera,[23] which reads thus:

Without a doubt, the registered owner of real property is entitled
to its possession. However, the owner cannot simply wrest possession
thereof from whoever is in actual occupation of the property. To recover
possession, he must resort to the proper judicial remedy and, once he
chooses what action to file, he is required to satisfy the conditions
necessary for such action to prosper.
In the present case, petitioner opted to file an ejectment case
against respondents. Ejectment casesforcible entry and unlawful
detainerare summary proceedings designed to provide expeditious
means to protect actual possession or the right to possession of the
 property involved. The only question that the courts resolve in ejectment
proceedings is: who is entitled to the physical possession of the
premises, that is, to the possession de facto and not to the possession de
jure. It does not even matter if a partys title to the property is
questionable. For this reason, an ejectment case will not necessarily
be decided in favor of one who has presented proof of ownership of
the subject property. Key jurisdictional facts constitutive of the
particular ejectment case filed must be averred in the complaint and
sufficiently proven.
The statements in the complaint that respondents possession of the
building was by mere tolerance of petitioner clearly make out a case for
unlawful detainer. Unlawful detainer involves the persons withholding
from another of the possession of the real property to which the latter is
entitled, after the expiration or termination of the formers right to hold
possession under the contract, either expressed or implied.
A requisite for a valid cause of action in an unlawful detainer case
is that possession must be originally lawful, and such possession must
have turned unlawful only upon the expiration of the right to possess. It
must be shown that the possession was initially lawful; hence, the basis
of such lawful possession must be established. If, as in this case, the
claim is that such possession is by mere tolerance of the plaintiff, the
acts of tolerance must be proved. (Emphasis supplied.)
In this case, petitioner has not proven that
respondents continued possession of the subject
properties was by mere tolerance of his father, except
by a mere allegation thereof. In fact, petitioner has not
established when respondents possession of the
properties became unlawful a requisite for a valid
cause of action in an unlawful detainer case.

In Canlas v. Tubil,[24] we enumerated the elements that constitute the

sufficiency of a complaint for unlawful detainer, as follows:
Well-settled is the rule that what determines the nature of the action as
well as the court which has jurisdiction over the case are the allegations
in the complaint. In ejectment cases, the complaint should embody such
statement of facts as to bring the party clearly within the class of cases
for which the statutes provide a remedy, as these proceedings are
summary in nature. The complaint must show enough on its face to give
the court jurisdiction without resort to parol evidence.

Unlawful detainer is an action to recover possession of real

property from one who illegally withholds possession after the
expiration or termination of his right to hold possession under any
contract, express or implied. The possession of the defendant in unlawful
detainer is originally legal but became illegal due to the expiration or
termination of the right to possess.

An unlawful detainer proceeding is summary in nature,

jurisdiction of which lies in the proper municipal trial court or
metropolitan trial court. The action must be brought within one year
from the date of last demand and the issue in said case is the right to
physical possession.
... ... ...
In Cabrera v. Getaruela, the Court held that a complaint sufficiently
alleges a cause of action for unlawful detainer if it recites the following:

(1) initially, possession of property by the defendant was by

contract with or by tolerance of the plaintiff;

(2) eventually, such possession became illegal upon notice by

plaintiff to defendant of the termination of the latters right of
possession;

(3) thereafter, the defendant remained in possession of the

property and deprived the plaintiff of the enjoyment thereof;
and

(4) within one year from the last demand on defendant to vacate
the property, the plaintiff instituted the complaint for
ejectment.
Based on the above, it is obvious that petitioner
has not complied with the requirements sufficient to
warrant the success of his unlawful detainer Complaint
against respondents. The lower courts and the CA have
consistently upheld the entitlement of respondents to
continued possession of the subject properties, since
their possession has been established as one in the
 concept of ownership. Thus, the courts correctly
dismissed the unlawful detainer case of petitioner.

The petitioners, in their defense, denied that their

possession of the disputed area was by mere tolerance and
claimed title thereto on the basis of their fathers successional
rights. That the petitioners occupation remained undisturbed for
more than thirty (30) years and the respondents failure to detail
and specify the petitioners supposedly tolerated possession
suggest that they and their predecessors-in-interest are aware of
their claim over the subject area. The petitioners also attacked
the validity of OCT No. 543 and TCT No. T-4773, alleging that it
was thru fraud that Maria was able to register Lot No. 3517,
including the disputed area, under her name. The petitioners
likewise moved for the dismissal of the complaint, claiming that
the allegations therein indicate that it was actually an action for
reconveyance. Further, laches had already set in view of the
respondents failure to assail their possession for more than thirty
(30) years.
The above complaint failed to allegea cause of action for unlawful detainer as it does not
describe possession by the respondents being initially legal or tolerated by the petitioner and which
became illegal upon termination by the petitioner of suchlawful possession. Petitioners insistence
that she actually tolerated respondents continued occupation after her discovery of their entry into
the subject premises is incorrect. As she had averred, she discovered respondentsoccupation in
May 2007. Such possession could not have been legal from the start as it was without her
knowledge or consent, much less was it based on any contract, express or implied. We stress that
the possession ofthe defendant in unlawful detainer is originally legal but became illegal due to the
expiration or termination of the right to possess.18

In Valdez v. Court of Appeals, the Court ruled that where the complaint did not satisfy the
19

jurisdictional requirement of a valid cause for unlawful detainer, the municipal trial court had no
jurisdiction over the case. Thus