SECOND DIVISION [G.R. No. 126444.

December 4, 1998]
ALFONSO QUIJADA, CRESENTE QUIJADA, REYNELDA QUIJADA, DEMETRIO QUIJADA,
ELIUTERIA QUIJADA, EULALIO QUIJADA, and WARLITO
QUIJADA, petitioners, vs. COURT OF APPEALS, REGALADO MONDEJAR, RODULFO
GOLORAN, ALBERTO ASIS, SEGUNDINO RAS, ERNESTO GOLORAN, CELSO ABISO,
FERNANDO BAUTISTA, ANTONIO MACASERO, and NESTOR
MAGUINSAY, respondents.

DECISION
MARTINEZ, J.:

Petitioners, as heirs of the late Trinidad Quijada, filed a complaint against private respondents for
quieting of title, recovery of possession and ownership of parcels of land with claim for attorney's fees and
damages. The suit was premised on the following facts found by the Court of Appeals, which is materially
the same as that found by the trial court:

"Plaintiffs-appellees (petitioners) are the children of the late Trinidad Corvera Vda. de Quijada. Trinidad
was one of the heirs of the late Pedro Corvera and inherited from the latter the two-hectare parcel of land
subject of the case, situated in the barrio of San Agustin, Talacogon, Agusan del Sur. On April 5, 1956,
Trinidad Quijada together with her sisters Leonila Corvera Vda. de Sequea and Paz Corvera Cabiltes and
brother Epapiadito Corvera executed a conditional deed of donation (Exh. C) of the two-hectare parcel of
land subject of the case in favor of the Municipality of Talacogon, the condition being that the parcel of land
shall be used solely and exclusively as part of the campus of the proposed provincial high school in
Talacogon. Apparently, Trinidad remained in possession of the parcel of land despite the donation. On July
29, 1962, Trinidad sold one (1) hectare of the subject parcel of land to defendant-appellant Regalado
Mondejar (Exh. 1). Subsequently, Trinidad verbally sold the remaining one (1) hectare to defendant-
appellant (respondent) Regalado Mondejar without the benefit of a written deed of sale and evidenced solely
by receipts of payment. In 1980, the heirs of Trinidad, who at that time was already dead, filed a complaint
for forcible entry (Exh. E) against defendant-appellant (respondent) Regalado Mondejar, which complaint
was, however, dismissed for failure to prosecute (Exh. F). In 1987, the proposed provincial high school
having failed to materialize, the Sangguniang Bayan of the municipality of Talacogon enacted a resolution
reverting the two (2) hectares of land donated back to the donors (Exh. D). In the meantime, defendant-
appellant (respondent) Regalado Mondejar sold portions of the land to defendants-appellants (respondents)
Fernando Bautista (Exh. 5), Rodolfo Goloran (Exh. 6), Efren Guden (Exh. 7) and Ernesto Goloran (Exh. 8).

"On July 5, 1988, plaintiffs-appellees (petitioners) filed this action against defendants-appellants
(respondents). In the complaint, plaintiffs-appellees (petitioners) alleged that their deceased mother never
sold, conveyed, transferred or disposed of the property in question to any person or entity much less to
Regalado Mondejar save the donation made to the Municipality of Talacogon in 1956; that at the time of the
alleged sale to Regalado Mondejar by Trinidad Quijada, the land still belongs to the Municipality of
Talacogon, hence, the supposed sale is null and void.

"Defendants-appellants (respondents), on the other hand, in their answer claimed that the land in dispute was
sold to Regalado Mondejar, the one (1) hectare on July 29, 1962, and the remaining one (1) hectare on
installment basis until fully paid. As affirmative and/or special defense, defendants-appellants (respondents)
alleged that plaintiffs' action is barred by laches or has prescribed.

"The court a quo rendered judgment in favor of plaintiffs-appellees (petitioners): firstly because 'Trinidad
Quijada had no legal title or right to sell the land to defendant Mondejar in 1962, 1966, 1967 and 1968, the
same not being hers to dispose of because ownership belongs to the Municipality of Talacogon' (Decision, p.
4; Rollo, p. 39) and, secondly, that the deed of sale executed by Trinidad Quijada in favor of Mondejar did
not carry with it the conformity and acquiescence of her children, more so that she was already 63 years old
at the time, and a widow (Decision, p. 6; Rollo, p. 41)."[1]
The dispositive portion of the trial court's decision reads:

"WHEREFORE, viewed from the above perceptions, the scale of justice having tilted in favor of the
plaintiffs, judgment is, as it is hereby rendered:

1) ordering the Defendants to return and vacate the two (2) hectares of land to Plaintiffs as
described in Tax Declaration No. 1209 in the name of Trinidad Quijada;
2) ordering any person acting in Defendants' behalf to vacate and restore the peaceful possession of
the land in question to Plaintiffs;
3) ordering the cancellation of the Deed of Sale executed by the late Trinidad Quijada in favor of
Defendant Regalado Mondejar as well as the Deeds of Sale/Relinquishments executed by
Mondejar in favor of the other Defendants;
4) ordering Defendants to remove their improvements constructed on the questioned lot;
5) ordering the Defendants to pay Plaintiffs, jointly and severally, the amount of P10,000.00
representing attorney's fees;
6) ordering Defendants to pays the amount of P8,000.00 as expenses of litigation; and
7) ordering Defendants to pay the sum of P30,000.00 representing moral damages.

SO ORDERED."[2]

On appeal, the Court of Appeals reversed and set aside the judgment a quo[3] ruling that the sale made
by Trinidad Quijada to respondent Mondejar was valid as the4 former retained an inchoate interest on the
lots by virtue of the automatic reversion clause in the deed of donation. [4] Thereafter, petitioners filed a
motion for reconsideration. When the CA denied their motion,[5] petitioners instituted a petition for review
to this Court arguing principally that the sale of the subject property made by Trinidad Quijada to
respondent Mondejar is void, considering that at that time, ownership was already transferred to the
Municipality of Talacogon. On the contrary, private respondents contend that the sale was valid, that they
are buyers in good faith, and that petitioners' case is barred by laches.[6]
We affirm the decision of the respondent court.
The donation made on April 5, 1956 by Trinidad Quijada and her brother and sisters[7] was subject to
the condition that the donated property shall be "used solely and exclusively as a part of the campus of the
proposed Provincial High School in Talacogon."[8] The donation further provides that should "the proposed
Provincial High School be discontinued or if the same shall be opened but for some reason or another, the
same may in the future be closed" the donated property shall automatically revert to the donor.[9] Such
condition, not being contrary to law, morals, good customs, public order or public policy was validly
imposed in the donation.[10]
When the Municipality's acceptance of the donation was made known to the donor, the former became
the new owner of the donated property -- donation being a mode of acquiring and transmitting
ownership[11] - notwithstanding the condition imposed by the donee. The donation is perfected once the
acceptance by the donee is made known to the donor.[12] Accordingly, ownership is immediately transferred
to the latter and that ownership will only revert to the donor if the resolutory condition is not fulfilled.
In this case, that resolutory condition is the construction of the school. It has been ruled that when a
person donates land to another on the condition that the latter would build upon the land a school, the
condition imposed is not a condition precedent or a suspensive condition but a resolutory one.[13] Thus, at
the time of the sales made in 1962 towards 1968, the alleged seller (Trinidad) could not have sold the lots
since she had earlier transferred ownership thereof by virtue of the deed of donation. So long as the
resolutory condition subsists and is capable of fulfillment, the donation remains effective and the donee
continues to be the owner subject only to the rights of the donor or his successors-in-interest under the deed
of donation. Since no period was imposed by the donor on when must the donee comply with the condition,
the latter remains the owner so long as he has tried to comply with the condition within a reasonable
period. Such period, however, became irrelevant herein when the donee-Municipality manifested through a
resolution that it cannot comply with the condition of building a school and the same was made known to
the donor. Only then - when the non-fulfillment of the resolutory condition was brought to the donor's
knowledge - that ownership of the donated property reverted to the donor as provided in the automatic
reversion clause of the deed of donation.
The donor may have an inchoate interest in the donated property during the time that ownership of the
land has not reverted to her. Such inchoate interest may be the subject of contracts including a contract of
sale. In this case, however, what the donor sold was the land itself which she no longer owns. It would have
been different if the donor-seller sold her interests over the property under the deed of donation which is
subject to the possibility of reversion of ownership arising from the non-fulfillment of the resolutory
condition.
As to laches, petitioners' action is not yet barred thereby. Laches presupposes failure or neglect for an
unreasonable and unexplained length of time, to do that which, by exercising due diligence, could or should
have been done earlier;[14] "it is negligence or omission to assert a right within a reasonable time, thus,
giving rise to a presumption that the party entitled to assert it either has abandoned or declined to assert
it."[15] Its essential elements of:
a) Conduct on the part of the defendant, or of one under whom he claims, giving rise to the
situation complained of;
b) Delay in asserting complainant's right after he had knowledge of the defendant's conduct and
after he has an opportunity to sue;
c) Lack of knowledge or notice on the part of the defendant that the complainant would assert the
right on which he bases his suit; and,
d) Injury or prejudice to the defendant in the event relief is accorded to the complainant."[16]
are absent in this case. Petitioners' cause of action to quiet title commenced only when the property reverted
to the donor and/or his successors-in-interest in 1987. Certainly, when the suit was initiated the following
year, it cannot be said that petitioners had slept on their rights for a long time. The 1960's sales made by
Trinidad Quijada cannot be the reckoning point as to when petitioners' cause of action arose.They had no
interest over the property at that time except under the deed of donation to which private respondents were
not privy. Moreover, petitioners had previously filed an ejectment suit against private respondents only that
it did not prosper on a technicality.
Be that at it may, there is one thing which militates against the claim of petitioners. Sale, being a
consensual contract, is perfected by mere consent, which is manifested the moment there is a meeting of the
minds[17] as to the offer and acceptance thereof on three (3) elements: subject matter, price and terms of
payment of the price.[18] ownership by the seller on the thing sold at the time of the perfection of the contract
of sale is not an element for its perfection. What the law requires is that the seller has the right to transfer
ownership at the time the thing sold is delivered.[19] Perfection per se does not transfer ownership which
occurs upon the actual or constructive delivery of the thing sold. [20] A perfected contract of sale cannot be
challenged on the ground of non-ownership on the part of the seller at the time of its perfection; hence, the
sale is still valid.
The consummation, however, of the perfected contract is another matter. It occurs upon the constructive
or actual delivery of the subject matter to the buyer when the seller or her successors-in-interest
subsequently acquires ownership thereof. Such circumstance happened in this case when petitioners -- who
are Trinidad Quijada's heirs and successors-in-interest -- became the owners of the subject property upon the
reversion of the ownership of the land to them. Consequently, ownership is transferred to respondent
Mondejar ands those who claim their right from him. Article 1434 of the New Civil Code supports the ruling
that the seller's "title passes by operation of law to the buyer."[21] This rule applies not only when the subject
matter of the contract of sale is goods,[22] but also to other kinds of property, including real property.[23]
There is also no merit in petitioners' contention that since the lots were owned by the municipality at the
time of the sale, they were outside the commerce of men under Article 1409 (4) of the NCC;[24]thus, the
contract involving the same is inexistent and void from the beginning. However, nowhere in Article 1409 (4)
is it provided that the properties of a municipality, whether it be those for public use or its patrimonial
property[25] are outside the commerce of men. Besides, the lots in this case were conditionally owned by the
municipality. To rule that the donated properties are outside the commerce of men would render nugatory
the unchallenged reasonableness and justness of the condition which the donor has the right to impose as
owner thereof. Moreover, the objects referred to as outsides the commerce of man are those which cannot be
appropriated, such as the open seas and the heavenly bodies.
With respect to the trial courts award of attorneys fees, litigation expenses and moral damages, there is
neither factual nor legal basis thereof. Attorneys fees and expenses of litigation cannot, following the
general rule in Article 2208 of the New Civil Code, be recovered in this case, there being no stipulation to
that effect and the case does not fall under any of the exceptions.[26] It cannot be said that private
respondents had compelled petitioners to litigate with third persons. Neither can it be ruled that the former
acted in gross and evident bad faith in refusing to satisfy the latters claims considering that private
respondents were under an honest belief that they have a legal right over the property by virtue of the deed
of sale. Moral damages cannot likewise be justified as none of the circumstances enumerated under Articles
2219[27] and 2220[28] of the New Civil Code concur in this case.
WHEREFORE, by virtue of the foregoing, the assailed decision of the Court of Appeals is
AFFIRMED.
SO ORDERED.
EN BANC

G.R. No. L-1748 June 1, 1906

THE BISHOP OF CEBU, REPRESENTING THE ROMAN CATHOLIC CHURCH, plaintiff-

appellee,
vs.
MARIANO MANGARON, defendant-appellant.

L.D. Hargis, for appellant.

Hartigan, Marple, Solignac and Gutierrez, for appellee.

PER CURIAM:

The plaintiff in this case relates to a tract of land in the district of Ermita of this city, it is alleged is
at present occupied by the defendant. The object of the original complaint was to recover the
possession of the said land, while in the amended complaint the plaintiff prays that the said land
be declared to be the property of the Catholic Church and that it be restored to the latter. Counsel
for appellant admits in his brief that the object of the action is the recovery of possession when he
refers to the judgment of the court below as being "in favor of the plaintiff in an action to
recover the possession of certain real estate." (Record, p. 1.)

Neither party has exhibited any title papers to the land in question nor pay other documentary
proof. They have only offered certain parol evidence as to the former possession of the land and
as to certain acts of ownership exercised by the parties over the same.

The court below found (a) "that the defendant's parents and brothers had been in possession of
the land in question until about the year 1887;" (b) "that it had not been clearly shown in what
capacity they had occupied the lands;" (c) "that about the year 1887 the defendant and his
relatives vacated the land by the virtue of an order from the municipality, which declared that the
land was included within the zone of materiales fuertes (fire zone) and the houses in which they
lived upon the said land without objection;" (d)"that after the land was vacated the parish priest of
the Ermita Church fenced the land and cleaned the same without any objection whatsoever on the
part of anyone; that the plaintiff claimed that this property had belonged to the Catholic Church
from the time immemorial, the defendant, his parents and brothers having occupied a part thereof
by the mere tolerance of the Catholic Church," (e) "that in the year 1898 the defendant, without the
consent of anyone, entered upon the land in question and built thereon a nipa house and
continued to live thereon without the consent of the parish priest of the Ermita Church or the
plaintiff in third case." (Bill of exceptions, p. 11.) The court then ordered "that the defendants
vacate the land described in the complaint and pay the costs of this action" (p. 12).

Counsel appellant says in his brief "that the defendant claims to be owner of the land by
inheritance." (Brief, p. 8.) It is not necessary for this court to apply to the present case the well-
settled doctrine that it is not sufficient to allege a universal title of inheritance without showing the
manner and form in which such title was converted into a singular title in favor of the person
invoking the same, particularly where, as in the present, case, the question involved does not
relate to the ownership of the property but rather to who has the better right to the possession of
the same. But the court below suggest that there are several brothers of the defendant who might
also claim the same right to occupy the land but who, however, had not done so. The court says
"from the evidence introduced at the trial and from the fact that the defendant's brothers do not
claim any right to the land in question, it seems that the claim of the plaintiff is the more credible."
(Bill of exceptions, p. 11.)

The complaint is directed against the illegal act of spoliation committed by the defendant in
October, 1898, while as he himself says there was no priest in Ermita who could take care of the
church and of the land in question, the American troops having occupied the parish house
according to the defendant, and the Filipino troops having occupied it according to other witness.
This is one of the points as to which there is no dispute between the parties, the defendant and the
witnesses of both important details relating to this matter.

Counsel for appellant sums up his brief in the following paragraph:

The defendant was the legal owner of the property when he was unlawfully ejected by the
plaintiff in 1879, and we insist that he had a right to reenter upon the land when he did so,
the time for prescription not having expired since he was ejected in 1879 (p. 8).

Upon this point the court below said: "The occupation of the land by the defendant in the year
1898 was illegal, for, if her brought he had a right to the land, he should have applied to the courts
for the possession of what belonged to him, and not proceed to occupy property claimed (he
should have said possessed) by another against the will of the latter."

The conclusion of law of the trial court is entirely in conformity with the conclusion would sanction
the recovery of possession through violence or other unlawful and arbitrary means, and would
permit a person to take the law into his own hands. "If a person thinks that he is entitled to the
property which another possesses he should claim the same from the person in possession. If the
latter accedes and voluntarily returns possession and acknowledges that the property does not
belong to him, there is no necessity of any one interfering, but if the person in possession refuses
to deliver the property, the one who believes himself to be entitled to it, however well founded his
belief may be, can not take the law into his own hands but must seek the aid of the competent
authorities." (4 Manresa, Commentaries on the Civil Code, p. 163.) The action of the defendant in
1898 was therefore absolutely unlawful.

This possession held by the defendant in 1898 can not be added to the former possession, which
was interrupted in 1877 by the order of the municipality, so as to consider such possession
continous, the time intervening not being of sufficient duration to cover the statutory period of "a
person who recovers possession according to law, which was improperly lost, is considered as
having enjoyed it redound to his benefit." But in this case it appears (1) that it can not be affirmed
that the possession enjoyed by the defendant was improperly lost; that possession ceased by
virtue of an order from the municipality and no proof to the contrary has been offered on this point;
(2) that it is impossible to say what was the nature of the possession prior to the year 1877 — that
is to say, whether it was held by right or by the mere tolerance of the plaintiff in this case. The
code refers to the recovery of the possession, according to law, which was improperly lost, and to
"recover according to law means through the proper writs and actions, or by requesting the aid of
competent authorities in the special cases where the provisions of article 441 may apply." (4
Manresa, Commentaries on the Civil Code, p. 329.) "Of course," continues Manresa "the acts of
violence or secrecy or mere tolerance can not affect the right of possession." Consequently the
defendant in this case could never have lawfully and legally done what he did, to wit, to reenter
upon the land which he had been ejected by the city of Manila. If the order of the municipality was
illegal, and the possession was improperly lost, the defendant should have requested the
assistance of the competent authorities to recover it. He should have applied to the executive or
administrative officials, as the case might have been, or to the courts of justice in a plenary action
for possession, for a year having elapsed since he was ejected from the premises, he could not
maintain a summary action for possession.

The legal provisions hereinbefore quoted would be sufficient ground upon which to base the
confirmation of the decision of the trial court, but on account of the facts involved in this case a
question of law has been raised by the members of this court which has not been urged by the
parties themselves. It is absolutely necessary to decide this question, which naturally arises from
the facts alleged in the complaint. The question is whether, after the promulgation of the Civil
Code, the accion publiciana, which had for its object the recovery of possession in a plenary action
before an action for the recovery of title could be instituted, still existed. It is well known that under
the legislation prior to the Civil Code, both substantive and adjective, there were three remedies
which a party unlawfully dispossessed could avail himself of, to wit: The accion interdictal, which
could be brought within a year, in a summary proceeding; the plenary action for possession in an
ordinary proceeding, which could only be brought after the expiration of a year; and the action for
title in an ordinary proceeding, which was brought in case the plenary action for possession failed.
The accion interdictal had for its object the recovery of the physical possession; the plenary action
for possession, the better right to such possession; and the action for title, the recovery of the
ownership.

We lay down as a conclusion that if the plaintiff, when he was deprived in October, 1898, of the
possession which he had enjoyed quietly and peacefully for twenty years, more or less, had within
a year instituted the accion interdictal, or summary action for possession, he would have been,
necessarily and undoubtedly, restored to the possession of the land. It would have availed the
defendant nothing to allege, as he now alleges, that he had merely recovered the possession
which he improperly lost in 1877, when he dispossessed the plaintiff as he did. Any tribunal, in the
same arbitrary manner in which the defendant dispossessed the party in possession, would have
condemned the said defendant to return the possession to that party.

But a year elapsed and the plaintiff brought this summary action for possession, and we also lay
down as a conclusion that such summary action for possession could not be maintained, either
under the old Code of Civil Procedure or under the new Code of Procedure in Civil Actions. (Laws
1 and 2, title 34 of the Novisima Recopilacion; art. 1635 of the Spanish Code of Civil Procedure
and sec. 80 of the present Code of Procedure in Civil Actions.)

This quiet and peaceful possession of twenty years, more or less, thus lost in a moment, could not
be recovered in a summary action for possession after the expiration of one year, but possession
could still be recovered through the accion publiciana, which involved the right to possess. This
latter action would be then based upon the fact that he, having been in possession for twenty
years, could not lose the same until he had been given an opportunity to be heard and had been
defeated in an action in court by another with a better right. (The same laws.) This fact of itself
would have been sufficient to recover the possession, not in summary, but in a plenary action, in
which it would likewise have availed the defendant nothing to allege that all that he did was to
recover a possession improperly lost in 1877. In one way or the other the plaintiff would have
recovered such possession, in the first case the physical possession and in the second case the
right to possess, which is not lost by the mere occupation of a third person, whether such
occupation was effected violently, secretly, or arbitrarily.

But the doubt which now exists is whether, after the promulgation of the Civil Code, the accion
publiciana continued to exist.

The doubt arises from the provisions of article 460 of the Civil Code, which reads as follows:

The possessor may lose his possession —

1. By the abandonment of the thing.

2. By transfer to another for a good or valuable consideration.

3. By the destruction or total loss of the thing or by the thing becoming unmarketable.

4. By the possession of another, over against the will of the former possessor, if the new
possession has lasted more than one year.
The last provision of this article has given rise to the doubt whether possession which is lost by the
occupation of another against the will of the former possessor is merely possession de facto or
possession de jure.

The most powerful reason why it is thought that it refers to possession both de facto and de jure is
that, whereas the two are equally lost in the manner indicated in the first three provisions of this
article, it would be rather strange that the fourth provision should only refer to possession de facto.

This, however, is not convincing because not only can the right of possession of any kind be lost in
the aforesaid three ways, but the right of ownership as well. It could not be inferred from this,
however, that the right of ownership can be lost in the fourth manner indicated. The legislation and
the jurisprudence of all countries will allow a party after he has lost possession to bring an action
to recover the ownership of the property — that is to say, to recover what belongs to him — except
where he is barred by the statute of limitations. There is no law fixing one year and one day as the
period of prescription of such actions.

Manresa expressly propounds this question and says:

Meditation upon the nature of possession, being convinced as we are of the fact that
possession constitutes a right, a right in rem, whenever it is exercised over real property or
property rights, has merely served to strengthen as far as possible our conviction of the
existence of the accion publiciana. We confess, willing to rely only upon a sound basis, that
a doubt has occurred to us as to whether or not such action should be exercised by the
possessor, as we find nothing definite upon which to place such reliance, although we have
noticed that most of the authors admit that he should, and we know that where there is a
right there is a cause of action.

We have later seen this question raised and the proposition advanced that, although, as an
exception to the general rule, such action is based upon equity, but as equity is not
sufficient to allow the exercise of such action, it would be necessary to have a legal
provision, an article in the code, establishing the same, a provision and an article which do
not exist, and their nonexistence shows that there is no such thing as the accion publiciana.

That we have no knowledge of the existence of any legal text or recent provisions which
expressly relate to such action, is true. The same thing is true in France. However, the
majority of the authors admit its existence. Among us it existence is also generally admitted
by the authorities on civil and procedural law. But we do not desire to base our conclusions
upon the arguments of the authorities, particularly when we note that Sanchez Roman is
the only one who has attempted to support in any way his conclusions. It is sufficient, says
this author, that the right existing, there should be an action to protect it. There is no
necessity of any special declaration in the Civil Code.

We are of the same opinion as the author in question, but certainly not because we believe
that if the possessor is deprived of the accion publiciana his right ceases to be a right in
rem. In regard to this matter we refer to what we have already said in our preliminary
consideration of the question of possession.

In regard to this matter the idea is present in the code that possession should be
considered as an actual right and it is so stated in various articles of that code, as for
instance in article 438. It would be impossible to admit that a mere physical act would
confer all the rights which a possessor ordinarily enjoys.

Article 445 presupposes that possession may be considered either as de facto or de jure,
for when it refers to controversies arising from the possession de facto, it clearly indicates
that other controversies may arise which would not relate to the possession de facto.
 Further it can not be conceived that had its intent been different it should have preferred
actual possession to any other possession. The article in question ends with the following
significant words: "The thing shall be placed in deposit or judicial keeping until
the possession or ownership thereof is decided in the proper manner." That is to say, the
question of fact can not be determined until the question of law has been decided either in
regard to the ownership or in regard to the possession (pp. 220-221).

Further, let us take another subject, for instance, the subject for easements. It was
generally believed that the accion confesoria existed. Vain delusion! We have carefully
examined all the provisions of the code relating to easements and we find absolutely
nothing in regard to such an action. Then the accion confesoria is another error. It does not
really exist. Then, if the owner of the dominant estate is denied the use of the easement, it
would not be because he has not a right to such use of it. The only thing that he has not is
the action.

No; such an absurdity can not be admitted. It is impossible to conceive that a person has a
right which need not be respected by others, and such respect can not be exacted unless
the law provides an adequate remedy for its enforcement. If a person has aright over any
kind of property, such right would not be complete unless it could be enforced as against
the whole world. The action is the recognition of the right; it is the weapon for its protection;
the right certainly does not arise from the action, but on the contrary the action arises from
the right. There is a right recognized by the code — then this is sufficient! That right
necessarily carries with it the action to enforce it, the life-giving force. The action is, under
this aspect, the actual enforcement of the right, and these two things are so closely allied
that if the action is denied the right is also virtually and actually denied. the accion
publiciana, therefore, exists, not for the sake of equity, but because it must necessarily exist
if the right to possession exists or can exist as provided in article 445, and as is inferred
from the other articles of the code dealing with this subject.

There are not, in reality, any practical difficulties, for the courts consider as owners many
who are simply possessors, and actions for title are maintained upon evidence which
appears to be proof of ownership, but which in reality is not, for the reason that the title
under which such ownership is claimed is not always in question, but merely its superiority
over the claim of title of another. In a word, it is necessary to state the nature of the action
but not the name by which it is known, and the claim being a just one, it is allowed in an
action for title which in a multitude of cases would be nothing but an accion
publiciana (plenary action for possession). Do not give the name of the action because it is
not necessary; merely ask that the right be enforced. Who can reject the claim ? (Pages
223-224.)

Paragraph 4 of article 460 is not an innovation in the Civil Code, nor does it mean the modification
or reformation of the old law. Law 17, title 30 of the third Partida contains the same provision: "One
who holds property can not lose the possession thereof except in one of the following manners: (1)
If he is ejected from it by force; (2) if another person occupies in while he is absent and upon his
return refuses him admission. . . . But although he may lose the possession in either of the
aforesaid manners, he can, however, recover the same, and even the title thereto by an action in
court." There is no doubt that paragraph 4 of article 460 is nothing but a repetition of the law in
force prior to the Civil Code. He who loses possession in either of these ways may demand the
return of the same in an action in court, as well as the ownership of the property, the glossator in
expanding the word juizio which appears in the law, saying, "by means of an action, unde vi,
namely, that of recovery, or by any such restorative means." So that the possession thus lost may
be recovered not only in an action unde vi but some other restorative means, such as the accion
publiciana or a penal action; this aside from an action for title.
Law 2, title 34, book 11 of the "Novisima Recopilacion" contains in its title the following prohibitive
provision: "No one shall be deprived of his possession until he has had an opportunity to be heard
and his right is defeated in accordance with the law."

As a legal precedent to paragraph 4 of article 460 we have law 3, title 8, of the same book 11,
which says: "The laws of some cities provide that he who has been in possession of a building,
vineyard, or other land for one year and one day, peacefully and adversely to the person claiming
to be entitled to such possession who travels in and out of the village, shall not be held
responsible therefor. There being doubt as to whether such possession for the period of one year
and one day requires title in good faith, we, to dispell this doubt, do hereby order that he who
holds such possession for the period of one year and one day shall not be exempt from liability
therefor while in possession unless such possession of one year and one day was accompanied
by title in good faith."

If the whole provision of article 460, paragraph 4, was contained in the old law and such was the
meaning and efficacy that possession of one year and one day had under the said old law, the
courts must give some satisfactory and convincing explanation why the meaning and efficacy of
such possession of one year and one day referred to in the code should be different. We are
unable to give such explanation, because in the act which was the basis of the present code
nothing new was provided upon this subject, nor was any rule or procedure specified by which the
various sections of the new law should be governed. Therefore the provisions of the code should
be construed, as to the possession of one year and one day, as they were construed in the prior
legislation, unless it appears that the intention of the legislature was otherwise — that is to say,
unless it appears that the said legislature intended exactly the contrary of what had been
established preceding the enactment of the code.

The right acquired by the person who has been in possession for one year and one day is the right
that the former possessor lost by allowing the year and one day to expire. The right is lost by the
prescription of the action. And the action which prescribes upon the expiration of the year is "the
action to recover or to retain possession; " that is to say, the interdictory action. (Art. 1968, par. 1.)
then the only right that can be acquired now, as before, by the person who was in possession for
one year and one day is that he can not be made to answer in an interdictory action, but this is not
so in a plenary action unless he had some title in good faith. The former possessor who had been
in possession for twenty years, more or less, was considered as owner, and unless he was given
an opportunity to be heard, and was defeated in law, he could not be deprived of such possession;
and notwithstanding all this, and in spite of such prohibition, the maintenance of a possession
wrongfully taken from the former possessor by a willful act of the actual possessor had to be
sustained.

The lessee, the depositary, the pledgee, the intruder, the usurper, the thief himself, after the
expiration of a year would not be responsible for the possession of which the lawful possessor was
wrongfully deprived, and if the latter could produce no evidence of his right of ownership — the
only thing that he could do according to the contrary theory — it would be impossible for him to
recover such possession thus lost by any other means.

If, in addition to the fact of possession, the action for the enforcement of which prescribes after the
expiration of one year and one day, there exists without any doubt whatsoever the right to possess
(or more properly speaking in the case at bar, to continue to possess, which said right of
possession would be a right in rem, such possession would not be on a less favorable footing than
a mere possession de facto; and, if in the latter case the interdictory action lies, the action which
existed prior to the enactment of the code, to wit, the accion publiciana, should continue to lie in
the former case. The code establishes rights and the Law of civil Procedure prescribes actions for
the protection of such rights, and we can not look to the code to find any provision defining the
action which every civil right carries with it.
This is the reason why as a title of chapter 3 of the code in which article 460 is included, and a
sanction of the whole of title 5, book 2, which deals with possession, article 446 provides that
every possessor has a right to be respected in his possession, and should he be disturbed therein,
he must be protected or possession must be restored to him by the means established in the laws
of procedure.

The code refers to the laws of procedure enacted in Spain in 1881 and extended to the Philippines
in 1888. Article 1635 of the old Code of Civil Procedure makes provision for summary proceedings
to retain or to recover, to protect or to restore, possession, provided the action is brought within a
year, but after the expiration of this period the party may bring such action as may be proper. This
latter action, as has been explained before, may be either the plenary action for possession
referred to or an action for title. This assumed, and reading article 1635 of the old Code of Civil
Procedure immediately before article 446 of the Civil Code, we are unable to conceive how that
could be successfully denied after the 8th of December, 1889, when the Civil code went into
effect, which could not be denied prior to that date, to wit, the existence of the accion publiciana to
recover the right of possession, to enforce the right to possess, which although it could not be
brought within the year as a mere interdictory action for the protection of the mere physical
possession, there can be no valid reason why it could not be brought after the expiration of the
year in order to protect the right and not the mere physical possession.

Article 1635 of the old Code of Civil Procedure not having been repealed by the Civil Code, if
the accion publiciana existed prior to its enactment, it must necessarily exist after such enactment.
We consequently conclude that the action brought by the plaintiff in this case to recover the
possession of which he was unlawfully deprived by the defendant can be properly maintained
under the provisions of the present Civil Code considered as a substantive law, without prejudice
to any right which he may have to the ownership of the property, which ownership he must
necessarily establish in order to overcome the presumption of title which exist in favor of the lawful
possessor, the plaintiff in this case, who had been in the quiet and peaceful possession of the land
for twenty years, more or less, at the time he was wrongfully dispossessed by the defendant.

Having reached this conclusion, the judgment of the court below is accordingly affirmed, with the
cost of this action against the appellant. So ordered.
G.R. No. 103302 August 12, 1993

NATALIA REALTY, INC., AND ESTATE DEVELOPERS AND INVESTORS CORP., petitioners,
vs.
DEPARTMENT OF AGRARIAN REFORM, SEC. BENJAMIN T. LEONG and DIR. WILFREDO
LEANO, DAR REGION IV, respondents.

Lino M. Patajo for petitioners.

The Solicitor General for respondents.

BELLOSILLO, J.:

Are lands already classified for residential, commercial or industrial use, as approved by the
Housing and Land Use Regulatory Board and its precursor agencies1 prior to 15 June
1988,2 covered by R.A. 6657, otherwise known as the Comprehensive Agrarian Reform Law of
1988? This is the pivotal issue in this petition for certiorari assailing the Notice of Coverage3 of the
Department of Agrarian Reform over parcels of land already reserved as townsite areas before the
enactment of the law.

Petitioner Natalia Realty, Inc. (NATALIA, for brevity) is the owner of three (3) contiguous parcels of
land located in Banaba, Antipolo, Rizal, with areas of 120.9793 hectares, 1.3205 hectares and
2.7080 hectares, or a total of 125.0078 hectares, and embraced in Transfer Certificate of Title No.
31527 of the Register of Deeds of the Province of Rizal.

On 18 April 1979, Presidential Proclamation No. 1637 set aside 20,312 hectares of land located in
the Municipalities of Antipolo, San Mateo and Montalban as townsite areas to absorb the
population overspill in the metropolis which were designated as the Lungsod Silangan Townsite.
The NATALIA properties are situated within the areas proclaimed as townsite reservation.

Since private landowners were allowed to develop their properties into low-cost housing
subdivisions within the reservation, petitioner Estate Developers and Investors Corporation (EDIC,
for brevity), as developer of NATALIA properties, applied for and was granted preliminary approval
and locational clearances by the Human Settlements Regulatory Commission. The necessary
permit for Phase I of the subdivision project, which consisted of 13.2371 hectares, was issued
sometime in 1982;4 for Phase II, with an area of 80,000 hectares, on 13 October 1983; 5 and for
Phase III, which consisted of the remaining 31.7707 hectares, on 25 April 1986.6 Petitioner were
likewise issued development permits7 after complying with the requirements. Thus the NATALIA
properties later became the Antipolo Hills Subdivision.

On 15 June 1988, R.A. 6657, otherwise known as the "Comprehensive Agrarian Reform Law of
1988" (CARL, for brevity), went into effect. Conformably therewith, respondent Department of
Agrarian Reform (DAR, for brevity), through its Municipal Agrarian Reform Officer, issued on 22
November 1990 a Notice of Coverage on the undeveloped portions of the Antipolo Hills
Subdivision which consisted of roughly 90.3307 hectares. NATALIA immediately registered its
objection to the notice of Coverage.

EDIC also protested to respondent Director Wilfredo Leano of the DAR Region IV Office and twice
wrote him requesting the cancellation of the Notice of Coverage.

On 17 January 1991, members of the Samahan ng Magsasaka sa Bundok Antipolo, Inc. (SAMBA,
for the brevity), filed a complaint against NATALIA and EDIC before the DAR Regional Adjudicator
to restrain petitioners from developing areas under cultivation by SAMBA members.8 The Regional
Adjudicator temporarily restrained petitioners from proceeding with the development of the
subdivision. Petitioners then moved to dismiss the complaint; it was denied. Instead, the Regional
Adjudicator issued on 5 March 1991 a Writ of Preliminary Injunction.

Petitioners NATALIA and EDIC elevated their cause to the DAR Adjudication Board (DARAB);
however, on 16 December 1991 the DARAB merely remanded the case to the Regional
Adjudicator for further proceedings.9

In the interim, NATALIA wrote respondent Secretary of Agrarian Reform reiterating its request to
set aside the Notice of Coverage. Neither respondent Secretary nor respondent Director took
action on the protest-letters, thus compelling petitioners to institute this proceeding more than a
year thereafter.

NATALIA and EDIC both impute grave abuse of discretion to respondent DAR for including
undedeveloped portions of the Antipolo Hills Subdivision within the coverage of the CARL. They
argue that NATALIA properties already ceased to be agricultural lands when they were included in
the areas reserved by presidential fiat for the townsite reservation.

Public respondents through the Office of the Solicitor General dispute this contention. They
maintain that the permits granted petitioners were not valid and binding because they did not
comply with the implementing Standards, Rules and Regulations of P.D. 957, otherwise known as
"The Subdivision and Condominium Buyers Protective Decree," in that no application for
conversion of the NATALIA lands from agricultural residential was ever filed with the DAR. In other
words, there was no valid conversion. Moreover, public respondents allege that the instant petition
was prematurely filed because the case instituted by SAMBA against petitioners before the DAR
Regional Adjudicator has not yet terminated. Respondents conclude, as a consequence, that
petitioners failed to fully exhaust administrative remedies available to them before coming to court.

The petition is impressed with merit. A cursory reading of the Preliminary Approval and Locational
Clearances as well as the Development Permits granted petitioners for Phases I, II and III of the
Antipolo Hills Subdivision reveals that contrary to the claim of public respondents, petitioners
NATALIA and EDIC did in fact comply with all the requirements of law.

Petitioners first secured favorable recommendations from the Lungsod Silangan Development
Corporation, the agency tasked to oversee the implementation of the development of the townsite
reservation, before applying for the necessary permits from the Human Settlements Regulatory
Commission. 10 And, in all permits granted to petitioners, the Commission
stated invariably therein that the applications were in "conformance" 11 or "conformity" 12 or
"conforming" 13 with the implementing Standards, Rules and Regulations of P.D. 957. Hence, the
argument of public respondents that not all of the requirements were complied with cannot be
sustained.

As a matter of fact, there was even no need for petitioners to secure a clearance or prior approval
from DAR. The NATALIA properties were within the areas set aside for the Lungsod Silangan
Reservation. Since Presidential Proclamation No. 1637 created the townsite reservation for the
purpose of providing additional housing to the burgeoning population of Metro Manila, it in effect
converted for residential use what were erstwhile agricultural lands provided all requisites were
met. And, in the case at bar, there was compliance with all relevant rules and requirements. Even
in their applications for the development of the Antipolo Hills Subdivision, the predecessor agency
of HLURB noted that petitioners NATALIA and EDIC complied with all the requirements prescribed
by P.D. 957.

The implementing Standards, Rules and Regulations of P.D. 957 applied to all subdivisions and
condominiums in general. On the other hand, Presidential Proclamation No. 1637 referred only to
the Lungsod Silangan Reservation, which makes it a special law. It is a basic tenet in statutory
construction that between a general law and a special law, the latter prevails. 14

Interestingly, the Office of the Solicitor General does not contest the conversion of portions of the
Antipolo Hills Subdivision which have already been developed. 15 Of course, this is contrary to its
earlier position that there was no valid conversion. The applications for the developed and
undeveloped portions of subject subdivision were similarly situated. Consequently, both did not
need prior DAR approval.

We now determine whether such lands are covered by the CARL. Section 4 of R.A. 6657 provides
that the CARL shall "cover, regardless of tenurial arrangement and commodity produced, all public
and private agricultural lands." As to what constitutes "agricultural land," it is referred to as "land
devoted to agricultural activity as defined in this Act and not classified as mineral, forest,
residential, commercial or industrial land." 16 The deliberations of the Constitutional Commission
confirm this limitation. "Agricultural lands" are only those lands which are "arable and suitable
agricultural lands" and "do not include commercial, industrial and residential lands." 17

Based on the foregoing, it is clear that the undeveloped portions of the Antipolo Hills Subdivision
cannot in any language be considered as "agricultural lands." These lots were intended for
residential use. They ceased to be agricultural lands upon approval of their inclusion in the
Lungsod Silangan Reservation. Even today, the areas in question continued to be developed as a
low-cost housing subdivision, albeit at a snail's pace. This can readily be gleaned from the fact that
SAMBA members even instituted an action to restrain petitioners from continuing with such
development. The enormity of the resources needed for developing a subdivision may have
delayed its completion but this does not detract from the fact that these lands are still residential
lands and outside the ambit of the CARL.

Indeed, lands not devoted to agricultural activity are outside the coverage of CARL. These include
lands previously converted to non-agricultural uses prior to the effectivity of CARL by government
agencies other than respondent DAR. In its Revised Rules and Regulations Governing Conversion
of Private Agricultural Lands to Non-Agricultural Uses, 18 DAR itself defined "agricultural land" thus
—

. . . Agricultural lands refers to those devoted to agricultural activity as defined in

R.A. 6657 and not classified as mineral or forest by the Department of Environment
and Natural Resources (DENR) and its predecessor agencies, and not classified in
town plans and zoning ordinances as approved by the Housing and Land Use
Regulatory Board (HLURB) and its preceding competent authorities prior to 15 June
1988 for residential, commercial or industrial use.

Since the NATALIA lands were converted prior to 15 June 1988, respondent DAR is bound by
such conversion. It was therefore error to include the undeveloped portions of the Antipolo Hills
Subdivision within the coverage of CARL.

Be that as it may, the Secretary of Justice, responding to a query by the Secretary of Agrarian
Reform, noted in an Opinion 19 that lands covered by Presidential Proclamation No. 1637, inter
alia, of which the NATALIA lands are part, having been reserved for townsite purposes "to be
developed as human settlements by the proper land and housing agency," are "not deemed
'agricultural lands' within the meaning and intent of Section 3 (c) of R.A. No. 6657. " Not being
deemed "agricultural lands," they are outside the coverage of CARL.

Anent the argument that there was failure to exhaust administrative remedies in the instant
petition, suffice it to say that the issues raised in the case filed by SAMBA members differ from
those of petitioners. The former involve possession; the latter, the propriety of including under the
operation of CARL lands already converted for residential use prior to its effectivity.
Besides, petitioners were not supposed to wait until public respondents acted on their letter-
protests, this after sitting it out for almost a year. Given the official indifference, which under the
circumstances could have continued forever, petitioners had to act to assert and protect their
interests. 20

In fine, we rule for petitioners and hold that public respondents gravely abused their discretion in
issuing the assailed Notice of Coverage of 22 November 1990 by of lands over which they no
longer have jurisdiction.

WHEREFORE, the petition for Certiorari is GRANTED. The Notice of Coverage of 22 November
1990 by virtue of which undeveloped portions of the Antipolo Hills Subdivision were placed under
CARL coverage is hereby SET ASIDE.

SO ORDERED.
 Supreme Court
Manila

SECOND DIVISION

DR. DIOSCORO CARBONILLA, G.R. No. 177637

Petitioner,
Present:

CARPIO, J.,
- versus - Chairperson,
NACHURA,
PERALTA,
ABAD, and
MENDOZA, JJ.
MARCELO ABIERA and MARICRIS
ABIERA PAREDES, SUBSTITUTED BY Promulgated:
HER HEIRS,
Respondents. July 26, 2010

x--------------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:

Assailed in this petition for review are the Decision[1] of the Court of Appeals (CA) dated September
18, 2006 and the Resolution dated April 17, 2007, which dismissed petitioners complaint for ejectment
against respondents.

The case arose from the following antecedents:

Petitioner, Dr. Dioscoro Carbonilla, filed a complaint for ejectment against respondents, Marcelo
Abiera and Maricris Abiera Paredes, with the Municipal Trial Court in Cities (MTCC), Maasin City. The
complaint alleged that petitioner is the registered owner of a parcel of land, located in Barangay Canturing,
Maasin City, identified as Lot No. 1781-B-P-3-B-2-B PSD-08-8452-D, Maasin Cadastre. The land is
purportedly covered by a certificate of title, and declared for assessment and taxation purposes in petitioners
name. Petitioner further claimed that he is also the owner of the residential building standing on the land,
which building he acquired through a Deed of Extrajudicial Settlement of Estate (Residential Building) with
Waiver and Quitclaim of Ownership. He maintained that the building was being occupied by respondents by
mere tolerance of the previous owners. Petitioner asserted that he intends to use the property as his
residence, thus, he sent a demand letter to respondents asking them to leave the premises within 15 days
from receipt of the letter, but they failed and refused to do so. Conciliation efforts with the Barangay proved
futile.[2]

To corroborate his claim, petitioner presented copies of Transfer Certificate of Title (TCT) No. T-
3784; Deed of Extrajudicial Settlement of Estate (Residential Building) with Waiver and Quitclaim of
Ownership dated November 10, 2002, executed by the heirs of Jovita Yanto Garciano; Tax Declaration (TD)
with ARP No. 07020-000019; and Demand Letter dated November 20, 2002. TCT No. T-3784 shows that
the land was originally registered on January 30, 1968 in the name of Diosdado Carbonilla, petitioners
father, under Original Certificate of Title No. 185.

In their defense, 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. As for the subject land, respondents
claimed that they inherited the same from Francisco Plasabas, grandfather of Alfredo Abiera. They pointed
out that the land had, in fact, been declared for taxation purposes in the name of Francisco Plasabas under
TD No. 4676, before the Second World War. This TD was later cancelled by TD No. 8735 in 1948, TD
No. 14363 in 1958, and TD No. 16182 in 1963. Respondents averred that the building was previously a
garage-like structure but, in 1977, Alfredo Abiera and Teodorica Capistrano repaired and remodeled it, for
which reason, they obtained a building permit on April 11, 1977 from the then Municipality of
Maasin. Finally, respondents contended that the case should be dismissed for failure to implead as
defendants respondent Marcelos siblings, who are co-heirs of the subject properties.[3] Respondents
presented copies of the two TDs in the name of Francisco Plasabas and the Building Permit dated April 11,
1977.

The MTCC decided the case in favor of respondents. It opined that petitioners claim of ownership
over the subject parcel of land was not successfully rebutted by respondents; hence, petitioners ownership of
the same was deemed established.[4] However, with respect to the building, the court declared respondents as
having the better right to its material possession in light of petitioners failure to refute respondents 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.[5] In so ruling, the court applied Art. 546[6] of the Civil Code which allows the
possessor in good faith to retain the property until he is reimbursed for necessary expenses. Thus, in its
decision dated March 15, 2004, the MTCC pronounced:

WHEREFORE, foregoing premises considered and the collated evidences at hand

[have] preponderantly established, JUDGMENT is hereby rendered in favor of the defendants
DECLARING the defendants to have the better rights of (material) possession to the assailed
building and deemed as possessors in good faith and are legally entitled to its possession and
occupancy.

The plaintiff judicially affirmed as the land owner is enjoined to respect the rights of
the defendants pursuant to the provisions of Art. 546, Chapter III, New Civil Code of
the Philippines[, w]ithout prejudice to the provisions of Arts. 547 and 548, New Civil Code
 of the Philippines. No pronouncement as to costs as defendants predecessors-in-interest are
deemed possessors and builders in good faith.

SO ORDERED.[7]

Petitioner elevated the case to the Regional Trial Court (RTC). On July 12, 2004, the RTC reversed
the MTCC decision. The RTC agreed with the MTCC that the land is owned by petitioner. The two courts
differed, however, in their conclusion with respect to the building. The RTC placed the burden upon
respondents to prove their claim that they built it prior to petitioners acquisition of the land, which burden,
the court found, respondents failed to discharge. The RTC held that, either waywhether the building was
constructed before or after petitioner acquired ownership of the landpetitioner, as owner of the land, would
have every right to evict respondents from the land. As theorized by the RTC, if the building was erected
before petitioner or his predecessors acquired ownership of the land, then Article 445 [8] of the Civil Code
would apply. Thus, petitioner, as owner of the land, would be deemed the owner of the building standing
thereon, considering that, when ownership of the land was transferred to him, there was no reservation by
the original owner that the building was not included in the transfer. On the other hand, if the building was
constructed after petitioner became the owner of the land, it is with more reason that petitioner has the right
to evict respondents from the land. The dispositive portion of the RTC decision reads:
WHEREFORE, premises considered, judgment is hereby rendered

1. Reversing the decision of the court a quo;

2. Ordering defendants to immediately vacate the residential house/building

subject of this litigation;

3. Ordering defendants to pay attorneys fee in the amount of P30,000.00;

and

4. To pay the cost of the suit.

SO ORDERED.[9]
Respondents then filed a petition for review with the CA. Finding no evidence to prove that respondents
possession of the building was by mere tolerance, the CA reversed the RTC decision and ordered the
dismissal of petitioners complaint. Because of this, the CA, following this Courts ruling in Ten Forty Realty
and Development Corporation v. Cruz,categorized the complaint as one for forcible entry. It then proceeded
to declare that the action had prescribed since the one-year period for filing the forcible entry case had
already lapsed. The dispositive portion of the CA Decision dated September 18, 2006 reads:
WHEREFORE, premises considered, the assailed decision promulgated on July 12, 2004 of
Branch 25 of the Regional Trial Court (RTC), Maasin City, Southern Leyte in Civil Case No.
R-3382 is hereby declared NULL and VOID for failure of the plaintiff (herein respondent) to
prove that the case at bar is for unlawful detainer or forcible entry. Accordingly, the instant
case is hereby DISMISSED.

xxxx

SO ORDERED.[10]
 Petitioner sought reconsideration of the Decision, but the CA denied petitioners motion for lack of
merit.[11] Hence, petitioner came to this Court through a petition for review on certiorari.

On September 3, 2007, respondents counsel informed this Court that respondent, Maricris Abiera
Paredes, died on June 25, 2006 of asphyxia due to hanging, and moved that the latters heirs be allowed to
substitute for the deceased.[12] In the Resolution[13] dated November 14, 2007, the Court granted the motion.

Petitioner argues that he has sufficiently established his ownership of the subject properties;
consequently, he asserts the right to recover possession thereof.

The petition has no merit.

To set the record straight, while petitioner may have proven his ownership of the land, as there can
be no other piece of evidence more worthy of credence than a Torrenscertificate of title, he failed to present
any evidence to substantiate his claim of ownership or right to the possession of the building. Like the CA,
we cannot accept the Deed of Extrajudicial Settlement of Estate (Residential Building) with Waiver and
Quitclaim of Ownership executed by the Garcianos as proof that petitioner acquired ownership of the
building. There is no showing that the Garcianos were the owners of the building or that they had any
proprietary right over it. Ranged against respondents proof of possession of the building since 1977,
petitioners evidence pales in comparison and leaves us totally unconvinced.

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.[14] 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.[15] 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.[16]

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.

In any event, petitioner has some other recourse. He may pursue recovering possession of his
property by filing an accion publiciana, which is a plenary action intended to recover the better right to
possess; or an accion reivindicatoria, a suit to recover ownership of real property. We stress, however, that
the pronouncement in this case as to the ownership of the land should be regarded as merely provisional and,
therefore, would not bar or prejudice an action between the same parties involving title to the land.[20]

WHEREFORE, premises considered, the petition is DENIED. The CA Decision dated September
18, 2006 and Resolution dated April 17, 2007 are AFFIRMED. SO ORDERED.