REPUBLIC OF THE PHILIPPINES

FOURTH JUDICIAL REGION

MUNICIPAL TRIAL COURT
CITY OF CABUYAO, LAGUNA

HELENA MONTIFAR, CIVIL CASE NO. 2781

Plaintiff,

-versus-

SPS. ROLLY and RUFINA BITO

and all persons and occupants
claiming rights under them, For: UNLAWFUL DETAINER
Defendants. WITH DAMAGES
x----------------------------------------------x

POSITION PAPER
(For the Defendant)

COMES NOW, the Defendant, through counsel, unto this

Honorable Court, respectfully submits this Position Paper and further
aver the following:

TIMELINESS OF FILING THIS POSITION PAPER

Defendants Counsel, Public Attorneys Office Bian received a

copy of the Preliminary Conference Order on October 2, 2017
ordering both parties to submit position paper and affidavits relative
to this case within 10 days Hence, this paper is filed within the
reglementary period;
 PARTIES

1. Defendants, Sps. Rolly and Rufina Bito are of legal age, Filipino
and presently residing at and lawful possessors of a parcel of
land with a total area of 3,238 square meters located at South
Point, Brgy. Banay-Banay, Cabuyao City, Laguna since 1997.
They are being represented by the Public Attorneys Office,
City of Bian, Laguna District with address at Hall of Justice,
Golden City Subdivision, Brgy. Canlalay, Binan City Laguna,
where they may be served with summons and other processes
of the Honorable Court;

2. Plaintiff Helena Montifar on the other hand is of legal age,

single, Filipino and presently residing at Barangay Sta. Clara, Sto.
Tomas Batangas. She is represented by Atty. Fred B. Bravo of
Bravo Fandialan Guevarra & Associates Law Office with
address at Monte Carlo Bldg., No. 23 Hermanos Belen St. San
Pablo City, Laguna, she they maybe served with summons and
other judicial processes of the Honorable Court;

STATEMENT OF RELEVANT ANTECEDENT FACTS

AND PROCEEDINGS

1. As admitted by Plaintiff during the Preliminary Conference,

Defendant Spouses Rolly and Rufina Bito are lawful possessors
of a lot with a total area of Three Thousand Two Hundred Thirty-
eight (3,238) square meters located at South Point, Brgy. Banay-
Banay Cabuyao, Laguna.

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Position Paper of Defendants Rolly & Rufina Bito
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2. They have been in open, continuous, exclusive, notorious and
adverse possession and occupation of the land since 1997
(even before Plaintiff acquired the neighboring lot), after
having come to the said area and found that it was vacant,
and after an inquiry resulted in their discovery that said
property has no owner. This fact is demonstrated by a
Certification from the Sangguniang Barangay of Banay-banay
issued by Barangay Chairman Efren Cabuang on July 1, 2015, a
copy attached herein as Annex 1; Affidavits of Adjoining
Properties executed by their neighbors Victorio P. Diaz and
Soledad L. Alforja on May 12, 2015, acknowledged before Atty
Guillermo L. Entredicho, a notary public for the City of Cabuyao,
Laguna, copies of which are herein attached as Annex 3
and 3-A; and a document entitled Pagpapatunay issued by
the Office of the Sangguniang Barangay of Pulo signed by
Punong Barangay Odilon I. Caparas dated October 13, 2005, a
copy of which was submitted in Defendants Answer as Annex
D and herein attached as Annex 8 along with a Sworn
Statement by the same as to the surrounding circumstances
when he issued the said Pagpapatunay, a copy of which is
attached herein as Annexes 8-A to 8-B.

3. Defendants have been applying for the registration of the said

property since 2015, thereby executing an Affidavit of
Ownership for the said purpose, dated April 24, 2015 and
acknowledged by Atty. Michael L. Asuten, a notary public for
the Province of Laguna. A copy of said Affidavit is herein
attached as Annex 2.

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4. For the same purpose, Defendant Rufina Bito also submitted a
Request Letter to the DENR-CENRO-IV-A of Los Baos, Laguna
for the Identification and Certification of the subject lot, dated
May 29,2015, which the said department issued, together with
a Sketch Plan, through Certifying Officer Marilyn Aguilon on
June 8, 2015, copies of said documents are herein attached
herein as Annexes 4, 5 and 5-A respectively. It can be
gleaned from the said Certification that the subject parcel of
land was declared to be WITHIN THE ALIENABLE AND
DISPOSABLE LANDS on September 28, 1981.

5. As admitted by Plaintiff, Defendants did not enter into previous

agreement with the Plaintiff, or any of her representatives with
respect to the lot subject of this case, and that, in fact, they
only came to know her in 2014, when they attended the
Barangay Conciliation respecting the said land.

6. The subject property being occupied by the Defendants is

ENTIRELY DIFFERENT FROM AND IS NOT PART OF the property
allegedly purchased by the Plaintiff. To prove this, Defendant
made a request before the Office of the City Engineer of the
City of Cabuyao to inspect the subject land. In turn, the said
office took photographs, and along with a Sketch Plan, issued
an Inspection Report with the recommendation/conclusion
that RUFINA V. BITOS RESIDENCE IS NOT PART OF BLK 5, LOT 1
(PROPERTY OF HELENA M. MONTIFAR). Copies of the said
documents are likewise attached herein as Annexes 6 to 6-
B. These are also supported by a Sworn Statement by the
Head of the Office of the Engineer of the City of Cabuyao,

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Position Paper of Defendants Rolly & Rufina Bito
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 Evelyn M. Hatulan, a copy of which is attached herein as
Annex 7.

ISSUES

I. WHETHER OR NOT THE PLAINTIFF HAS THE RIGHT TO LEGALLY

EJECT THE DEFENDANTS AND ALL PERSONS CLAIMING RIGHTS
UNDER THEM FROM THE SUBJECT PROPERTY;

II. WHETHER OR NOT THE PLAINTIFF IS ENTITLED TO HER MONETARY

CLAIM FOR DAMAGES;

III. WHETHER OR NOT PLAINTIFF IS ENTITLED TO DAMAGES.

IV. WHETHER OR NOT DEFENDANTS ARE ENTITLED TO ACTUAL,

MORAL AND EXEMPLARY COMPENSATION.

ARGUMENTS/ DISCUSSIONS

I. THE PLAINTIFF HAS NO RIGHT TO EJECT DEFENDANTS AND ALL

PERSONS CLAIMING RIGHTS UNDER THEM FROM THE SUBJECT
PROPERTY BECAUSE SHE IS NOT THE LAWFUL OWNER OF SUCH
PROPERTY;

The subject property being occupied by the Defendant is an entirely

different property and distinct from that allegedly purchased
and registered by the Plaintiff in her name

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 1. The technical description in the Transfer Certificate of Title (TCT)
(Annex A in the Complaint) of the lot purchased by Plaintiff
pertains only to a specific parcel of land which is adjacent to
the subject land being occupied by the Defendants.

2. The subject land being occupied by the Defendants has no

owner and is part of Alienable and Disposable Project of DENR
(Annex 5).

The subject property being occupied by the Defendants does not

and has never formed part of the property allegedly purchased and
registered by the Plaintiff in her name.

1. Nowhere in the TCT presented by the Plaintiff in her complaint

(Annex A) does it state that the subject property being
occupied by the Defendants forms part of the property
acquired by the Plaintiff and registered in her name.
2. The same TCT (page 3 thereof) states that the land registered
under the name of the Plaintiff contains an area of Two
Thousand, Three Hundred Forty-five square meters (2,345
sq.m.). On the other hand, the subject property being
occupied by the Defendants consists of Three Thousand Two
Hundred Thirty Eight square meters(3,238 sq.m.) as per DENR
Certification (Annex 5).

3. The foregoing leads to two irrefutable conclusions:

1) that they are two distinct parcels of land; and
2) that it is physically and legally impossible that a bigger
land area can be encompassed by a Certificate of
Title over a land which is smaller in area.
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 THE SUBJECT PROPERTY BEING OCCUPIED BY THE DEFENDANTS
CANNOT BE CONSIDERED AN EASEMENT OF THE PROPERTY
ACQUIRED BY THE PLAINTIFF

The Transfer Certificate of Title presented by Plaintiff does not grant,

create or establish her right to an easement

1. The Plaintiff claimed in her complaint and during the

Preliminary Conference that the subject property being
occupied by the Defendants is an easement of the
adjoining property she allegedly acquired. Through counsel,
Plaintiff cited the TCT (Annex A) as her basis.

2. The fact that Plaintiffs TCT indicates that the lot she
allegedly purchased is bounded on the NW along line 1-2
by easement does not establish her right to an easement
especially if there is no other source of such easement,
legally or otherwise, other than what is indicated in her TCT.

3. Indeed easements may be acquired by title. But a

Certificate of Title is not what is contemplated by law for
the word title as a mode of acquisition of easements. By
title refers to the juridical act which gives birth to the
easement, such as law, donation, contract and will of the
testator (Manresa 624-625). In this case, none of these
juridical acts were alleged or proven by the Plaintiff as
source of her alleged right to an easement and basis of her
claim for the same.

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 4. Moreover, mere registration is not a mode of ownership. It
does not create a right where legally, there is none.

The Plaintiff does not have a legal right to demand compulsory

easement

1. An Easement of Right of Way is defined as the right granted

by law to the owner of an esate which is surrounded by
other estates belonging to other persons and without
adequate outlet to a public highway to demand that he be
allowed a passageway throughout such neigboring estates
after payment of the proper indemnity. (De Leon, 2011 ed.
p.517)

2. The Civil Code of the Philippines ( Republic Act No. 386)

states that:
Section 3. Easement of Right of Way
Art. 649. The owner, or any person who by virtue of a
real right may cultivate or use any immovable, which is
surrounded by other immovables pertaining to other
persons and without adequate outlet to a public
highway is entitled to demand a right of way through
the neighboring estates, after payment of the proper
indemnity.

3. There are six (6) essential requisites for the establishment of

legal easements.
1) Claimant must be an owner of enclosed immovable or
one with a real right;

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 2) There must be no adequate outlet to a public highway
or road;
3) The right of way must be absolutely necessary;
4) The isolation must be not due to the claimants own
acy;
5) The easement must be established at the point least
prejudicial to the servient estate;
6) There must be payment of proper indemnity;

4. The first requisite is absent. It is readily apparent from Sketch

Plans issued by the DENR and that issued by the Office of
the Engineer of the City of Cabuyao (Annexes 5-A and 6-
A respectively), that the land allegedly purchased and
registered by the Plaintiff in her name is not an enclosed
estate.

5. The second requisite is also absent. The Plaintiffs Certificate

of Title itself categorically states on its face that it is bounded
by Two (2) roads ALONG THE LINE 3-4 BY ROAD; and
ALONG LINE 4-5 BY ROAD. Therefore, Plaintiffs property
has adequate access to a public highway or road;

6. For the reasons stated in the two previous paragraphs, the

third requisite is also absent.

By essence, easements are demanded by necessity,

that is, to enable owners of isolated estates to make
full use of their properties, which lack access to public

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 roads has denied them. (Costabella Corp. v. Court of
Appeals, 193 SCRA 333 [1991]).

Because Plaintiffs property has adequate access to a road,

it is not an enclosed estate , there is no necessity for an
easement. Therefore, there is no right granted to the Plaintiff
to demand an easement from the adjoining properties.

Supporting Arguments

1. Granting without admitting that Plaintiff is entitled to an

easement, the law could not have contemplated an
easement bigger in area than that of the dominant estate
itself.

Art. 651. The width of the easement of right of way shall

be that which is sufficient for the needs of the dominant
estate, and may accordingly be changed from time to
time.

It would be the height of absurdity if a land consisting of

Three Thousand Two Hundred Thirty Eight square
meters(3,238 sq. m.), or the entirety of the subject property
being occupied by the Defendant can be claimed by
another property on a mere claim for an easement.

2. Granting without admitting that there was a time that the

previous owner of the Plaintiffs property had a need for an
easement, thereby justifying the annotation for one in the
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 Certificate of Title to be later on transferred in the name of
the Plaintiff, there is presently no longer a necessity for it.
And it can and should be extinguished.

Art. 655. If the right of way granted to a surrounded

estate ceases to be neccessary because its owner
has joined it to another abutting on a public road, the
owner of the servient estate may demand that the
easement be extinguished, returning what he may
have received by way of indemnity. xxx

The same rule shall be applied in case a new road is

opened giving access to the isolated estate.

THE COMPLAINT FAILS TO STATE A CAUSE OF ACTION, THEREFORE

THE COURT DID NOT ACQUIRE JURISDICTION OVER THIS CASE.

1. Unlawful Detainer consists in the unlawful withholding by a

person from another, for not more than one (1) year, of the
possession of any land or building after the expiration or
termination of the right to hold such possession by virtue of
a contract, express or implied. (Torres vs. Ocampo, 80 Phil.
36). The requisites for the suit of unlawful detainer are the
following:

1. Initially, the possession of the property by the

defendant was by contract with or by
tolerance of the plaintiff.

2. Eventually, the possession became illegal

upon the plaintiffs notice to the defendant of

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 the termination of the latters right of
possession.

3. Thereafter, the defendant remained in

possession of the property and deprived the
plaintiff of the latters enjoyment.

4. Within one year from the making of the last

demand on the defendant to vacate the
property, the plaintiff instituted the
Complaint for ejectment. (Macaslang vs
Spouses Zamora, G.R. No. 156375, 30 May
2011, 649 SCRA 92)

2. The first requisite is absent. The complaint alleges that the

Defendants possession of the subject property was
merely by tolerance of the Plaintiff. The Plaintiff cannot be
said to have merely tolerated the Defendants
possession of the subject property because the said
property is not owned by the Plaintiff.

3. The Defendants had been occupants of the subject

property since 1997, even before the Plaintiffs acquired
and registered the neighboring lot under her name.

4. From the time Defendants started occupying the subject

property up to the present, the subject property had no
owner and was only declared as Alienable and
Disposable Land by the DENR in September 1981.
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 5. The second requisite is also absent. The Defendants
possession of the subject property was never and did not
become illegal as Plaintiff alleged in her complaint.

6. Granting without admitting that the Plaintiff indeed has

served the Defendants with a Demand to Vacate, such
demand does not have a leg to stand on. The Plaintiff
does not have a right over the subject property, legal or
otherwise. Again because the subject property is not and
has never been part of the property allegedly acquired
by and registered in the name of the Plaintiff.

II. PLAINTIFF IS NOT ENTITLED TO DAMAGES

Considering that the Plaintiff is not the lawful owner of the

subject property being occupied by the Defendants; that
neither can such property be claimed by the Plaintiff as
easement; and that Plaintif has no cause of action for a case
of Unlawful Detainer against the Defendants, it follows therefore
that Plaintiffs are not entitled to payment of damages.

III. DEFENDANTS ARE ENTITLED TO DAMAGES

In fact, it is the Defendants who are entitled to claim

damages from the Plaintiff for constraining them to litigate.

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 PRAYER

WHEREFORE, premises considered, it is most respectfully prayed

that this Position Paper and its attached documents be given due
consideration and that upon resolution of this case, a favorable
judgment be rendered in favor of the Defendants, declaring that the
Plaintiff has no cause of action for Unlawful Detainer not being the
lawful owner of the property being occupied by the defendants, nor
of a right to demand an easement from the latter, thereby dismissing
this case for lack of merit.

Other reliefs that are just and equitable under the premise are
likewise prayed for.

City of Binan to City of Cabuyao Laguna. October 2, 2017.

DEPARTMENT OF JUSTICE
PUBLIC ATTORNEYS OFFICE
Counsel for the Plaintiff
Binan District
Hall of Justice Bldg. Canlalay, Binan,
Laguna

By:

FLORDELYN M. BAYANI
Public Attorney I
Roll No. 69193/ IBP No. 016700
MCLE Compliance: N/A

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 VERIFICATION

We, Spouses Rolly and Rufina Bito, of legal age, Filipinos, and
presently residing at Blk Blk 224, Lot 50, Mabuhay City Subd., Brgy.
Mamatid, Cabuyao, Laguna, after having been duly sworn to in
accordance with law, hereby depose and state:

1. That we are the Defendants in the above-entitled case;

2. That we, through counsel, prepared the foregoing Position

Paper on this Unlawful Detainer;

3. That we have read and understood the same and all the
allegations therein are true, correct and of our own personal
knowledge and/or based on authentic documents;

IN WITNESS WHEREOF, we have hereunto affixed our signatures

this 4th day of October in Binan City, Laguna .

ROLLY O. BITO, Sr. RUFINA V. BITO

Affiant Affiant

SUBSCRIBED AND SWORN TO before me this 4th day of October,

2017 in Binan City, Laguna, affiants Rolly, Jr. and Rufina Bito
presented the following identification card bearing their photo and
signature:

Witness my hand on the date and place above written.

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