Republic of the Philippines

National Capital Judicial Region

REGIONAL TRIAL COURT
Las Pinñ as City

SPOUSES LOLLY CUSTODIO

and ANNIE CUSTODIO,
Plaintiffs,

versus CIVIL CASE No. _______________

For: Accion Reivindicatoria
NIK NIK SEVILLA and all
persons claiming rights under him,
Defendants.
x------------------------------------------x

COMPLAINT

Plaintiffs, by undersigned counsel and unto the Honorable Court,

respectfully depose and state that:

1. Plaintiff Spouses Lolly and Annie Custodio are of legal age,

Filipino, and with residential address at Lot 1, Block 2, AB Street,
Thomasian Village, Las Pinñ as City. They may be served with summons,
orders and other legal processes by the Honorable Court through
undersigned counsel at the details provided below.

2. Defendant Nik Nik Sevilla is of legal age, Filipino, and is

currently residing at Lot 2, Block 2, AB Street, Thomasian Village, Las
Pinñ as City, where she may be served with summons, orders and other
legal processes by the Honorable Court.

3. Plaintiff spouses are the absolute and registered owners of a

certain parcel of land located at Lot 1, Block 2, AB Street, Thomasian
Village, Las Pinñ as City with a total area of 500 sq.m., covered by and
more particularly described in Transfer Certificate of Title (TCT) No. T-
12345, issued by the Registry of Deeds of Las Pinñ as City, a copy of the
TCT and Tax Declaration of Property are hereby attached as Annexes
“A” and “B”, respectively.

4. The said property has a market value of Php 1,250,000.00 and

an assessed value of Php 750,000.00.

5. Plaintiff spouses have been the owners of the abovementioned

property since June 17, 2011 as they bought the same from Ponky Tutay

1
as evidenced by a Absolute Deed of Sale, a copy of which is hereby
attached as Annex “C”.

6. Defendant, on the other hand, is the registered owner of Lot 2,

Block 2, AB Street, Thomasian Village, Las Pinñ as City, covered by and
more particularly described in Transfer Certificate of Title (TCT) No. T-
67890, issued by the Registry of Deeds of Las Pinñ as City, a copy of the
TCT and Tax Declaration of Property are hereby attached as Annexes
“D” and “E”, respectively.

7. On July 01, 2015, plaintiff spouses commissioned the services of

Engr. Maantot Umali, a survey contractor of Honorable Realty and
Sureveying Office, to conduct a relocation survey of their lot. After the
survey the results are as follows:

“The frontage of Lot 1, adjoining lot on the

south side should only be 13.00 m. but
appeared to be 15.88 m. thereby appearing that
Lot 2 has encroached Lot 1 by 2.8 m. eventually
forming an overlap of 36.00 sq.m. The said
overlap is apparent, because a portion of the
building and concrete fence was built beyond
the property line.”

A copy of the relocation survey result dated July 01, 2015 is hereby
attached as Annex “F”.

8. It appears that the overlap existed since 2005 when an

improvement was built thereon by defendant.

9. Consequently, plaintiff spouses sent a Demand Letter to

defendant to vacate the encroached portion of land. A copy of said
demand letter dated November 30, 2015 is hereby attached as Annex
“G”.

10. Defendant, however, ignored the demand letter prompting

plaintiff spouses to refer the matter to the Lupong Tagapamayapa.
Unfortunately, no settlement was reached. Considering that the parties
failed to amicably settle their differences, a Certificate to File Action was
issued to plaintiff spouses. A copy of the certificate from Brgy. Talon II,
Las Pinñ as City is hereby attached as Annex “H”.

11. The Supreme Court, in the case of Spouses Elegio and Dolia
Cañezo v. Spouses Aploinario and Consorcia Bautista, G.R. No. 170189
(September 1, 2010) held that the proper action to recover a property is
accion reivindicatoria under Article 434 of the Civil Code:

2
 “Article 434 of the Civil Code reads: "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." Accion reivindicatoria
seeks the recovery of ownership and includes
the jus utendi and the jus fruendi brought in the
proper regional trial court. Accion
reivindicatoria is an action whereby plaintiff
alleges ownership over a parcel of land and
seeks recovery of its full possession.

In order that an action for the recovery of

title may prosper, it is indispensable, in
accordance with the precedents established by
the courts, that the party who prosecutes it
must fully prove, not only his ownership of the
thing claimed, but also the identity of the same.
However, although the identity of the thing that
a party desires to recover must be established, if
the plaintiff has already proved his right of
ownership over a tract of land, and the
defendant is occupying without right any part of
such tract, it is not necessary for plaintiff to
establish the precise location and extent of the
portions occupied by the defendant within the
plaintiff’s property.”

12. In the case at bar, that plaintiff spouses are the absolute and
registered owner of the subject property as evidenced by TCT No. T-
12345. The identity of the property in question is likewise particulary
defined and ascertained through the said TCT.

13. The encroached portion that plaintiff spouses sought to

recover is also categorically identified by the relocation survey result
dated July 01, 2015. To repeat, the result of the survey showed that
36.00 sq.m. of Lot 1 was encroached by defendant’s improvement.

14. Defendant, therefore, deprived plaintiff spouses of the lawful

possession of the 36.00 sq.m. occupied by her improvement.

15. By reason of the said encroachment, defendant must pay

plaintiff spouses the reasonable rental value of P3,600.00 per month, to
be computed from July 01, 2015 until the time that possession is
restored to plaintiff spouses.

3
 16. In addition, since defendant was not given any permission to
construct any improvement on the subject property, she is deemed to be
a builder in bad faith under Article 449 of the Civil Code which states
that:

“Art. 449. He who builds, plants or sows in

bad faith on the land of another, loses what is
built, planted or sown without right to
indemnity”

Consequently, defendant may be directed to remove the improvement

that encroached plaintiff spouses’ property without any reimbursement
of costs of construction.

17. By reason of defendant’s unjustified refusal to return

possession of the encroached portion to plaintiff spouses, done in bad
faith and without any rightful claim of ownership whatsoever, plaintiff
spouses are entitled to moral damages in the amount of Fifty Thousand
Pesos (Php 50,000.00).

18. Also by reason of defendant’s unjustified refusal to return

possession, and in order to defend their rights, plaintiff spouses were
constrained to engage the services of counsel to whom it has agreed to
pay the sum of Fifty Thousand Pesos (Php 50,000.00), plus an additional
Five Thousand Pesos (Php 5,000.00), for every appearance in court, as
and by way of attorney’s fees.

WHEREFORE, premises considered, plaintiff spouses respectfully

pray of the Honorable Court that judgment be rendered:

a. Ordering defendant and all persons claiming rights under

her to vacate and surrender the possession of the 36.00 sq.m.
encroached by defendant’s improvement to plaintiff spouses;

b. Ordering defendant to demolish the improvement on the

encroached area;

c. Ordering defendant to pay Php 3,600 per month from July

01, 2015 until possession has been restored to plaintiff spouses;
and

d. Ordering defendant to pay plaintiff spouses (i) Php

50,000.00 as moral damages, (ii) Php 50,000.00, and an additional
Php 5,000.00 per appearance in court as attorneys fees; and (c)
costs of suit.

4
 Other relief just and equitable under the premises are likewise
prayed for.

Alfonso, Cavite, for Las Pinñ as City, April 01, 2017.

REALYN M. AUSTRIA
R. M. AUSTRIA LAW OFFICE
No. 59 Usting Road
Brgy. Luksuhin Ibaba,
Alfonso, Cavite

Roll No. XXXXX

IBP No. XXXXXX/XX-XX-XX/Cavite
PTR No. XXXXXX/XX-XX-XX/Imus, Cavite
MCLE Compliance No. XXXXXXX
Valid until April 2019

Republic of the Philippines )

Province of Cavite )
Municipality of Alfonso ) S.S.

VERIFICATION AND
CERTIFICATION OF NON-FORUM SHOPPING

WE, Spouses Lolly and Annie Custodio, of legal age, Filipino and
residents of Lot 1, Block 2, AB Street, Thomasian Village, Las Pinñ as City,
after having been duly sworn to in accordance with law, hereby depose
and state:

1. That we are the plaintiffs in the instant case;

2. That WE have caused the preparation of the foregoing pleading;

3. That WE have read all the allegations contained therein and the
same are true and correct of our own personal knowledge and based on
the authentic records;

4. No other action or proceedings involving the same issues raised

in this appeal has been commenced and/or are pending with the
Supreme Court, Court of Appeals, or any division thereof, or any other
tribunal, court or agency.

5
 5. We undertake to inform this Honorable Court within five (5)
days from notice of any similar action or proceeding, which may have
been filed.

IN WITNESS WHEREOF, We have hereunto set our hands this April

01, 2017 at Alfonso, Cavite.

LOLLY CUSTODIO ANNIE CUSTODIO

SUBSCRIBED AND SWORN to before me, a Notary Public for the

Province of Cavite, this April 01, 2017 at Alfonso, Cavite, affiant
exhibiting to me their SSS ID card numbered 123456 and 7890 as
competent evidence of their identities.

WITNESS MY HAND AND NOTARIAL SEAL on the date and place

mentioned above.

Doc. No. 1; JOHN RAFAEL MARQUESES

Page No. 1; Notary Public for the

Book No. 1; Province of Cavite

Series of 2017. Roll No. XXXXX
IBP No. XXXXXX/XX-XX-
XX/Cavite
PTR No. XXXXXX/XX-XX-
XX/Alfonso, Cavite
MCLE Compliance No.
XXXXXXX
Valid until April 2019
Not. Commission No. TG-XXX
JRM LAW OFFICE
Brgy. Luksuhin Ibaba,
Alfonso, Cavite