SECOND DIVISION b.
Defendants-developers having already subdivided and sold
[G.R. No. 159124. January 17, 2005]
MARCELA GONZALES ALMEIDA, petitioner, vs. COURT OF
APPEALS and ROBERT P. SY, respondents.
DECISION
CALLEJO, SR., J.:
Before us is a petition for review on certiorari under Rule 45 of the
Revised Rules of Court of the Decision[1] of the Court of Appeals in CA-
G.R. SP No. 75020, finding grave abuse of discretion on the part of the
Regional Trial Court (RTC) of Caloocan City, Branch 130,[2] when it
granted the applications of the herein petitioner for the issuance of writs
of preliminary prohibitory and mandatory injunction.
The antecedents, as culled from the records of the case, are as
follows:
Marcelina Sarangaya was the registered owner of a parcel of land,
identified as Lot 896, located in the then municipality of Caloocan,
province of Rizal, covered by Transfer Certificate of Title (TCT) No.
87075,[3] with an area of 4,738 square meters. The property forms part
of the Tala Estate (Friar Land) covered by Original Certificate of Title
(OCT) No. 543 issued on December 27, 1910.[4]
Sometime in September 1993, respondent Robert P. Sy
purchased the above parcel of land from Sarangaya. TCT No. 87075
was cancelled and, in lieu thereof, TCT No. 270862 was issued on
September 16, 1993 under the name of Sy.[5]
Forthwith, the respondent caused the construction of a factory for
kitchenware on the property.[6] A little over than five years later, or on
January 20, 1998, petitioner Marcela Gonzales Almeida filed a
complaint against the respondent and forty (40) others for quieting of
title and the declaration, as void ab initio, of the assignment of sale
certificates and damages, with a prayer for temporary restraining order
and writ of preliminary injunction in the RTC of Caloocan City, Branch
124. The case was docketed as Civil Case No. C-537.[7]
In her complaint, the petitioner alleged, inter alia, that she was the
only child of the Spouses Severino Gonzales and Juana Libertad. A
certain Nicanor Jacinto was issued a Certificate of Sale dated July 11,
1910 over friar land, a parcel of land known as the Tala Estate, with an
area of 25.375 hectares. Jacinto, thereafter, executed an Assignment of
Sale Certificate dated November 4, 1926 in favor of the petitioners father
Severino Gonzales, which was duly approved by the Bureau of Lands.
The petitioner further narrated that prior to the Second World War, her
parents occupied the property continuously, openly and in the concept
of owner. After the death of her father and mother in 1940 and 1942,
respectively, she occupied the said property through her overseers,
openly and in the concept of owner being the sole heir thereof. However,
she was not able to secure a torrens title over the property based on the
said certificates because of limited instruction. The petitioner further
alleged that Oscar L. Uy, in connivance with the other defendants,
caused the falsification of the Deed of Assignment dated November 21,
1936 over the said parcel of land purportedly executed by Severino
Gonzales in favor of Pedro and Aleja Gonzales; on the basis thereof,
TCT No. 42126 was issued to the latter on January 9, 1941; this was
later cancelled on June 7, 1947 when TCT No. 4477 was issued to and
in the names of Paula Bernardo Vda. de Gonzales, et al.; and which, in
turn, was cancelled by TCT No. 4495 issued in the name of Oscar Uy
on June 7, 1947. TCT No. 10533(9498) was, thereafter, issued on July
1, 1948 in the names of Remedios Mercado, et al. The petitioner further
alleged that a portion of the property identified as Lot 896 was sold to
Marcelina Sarangaya on May 23, 1961,[8] who was issued TCT No.
87075 therefor. She claimed that the said deed of assignment executed
in favor of Pedro and Aleja Gonzales, and the titles issued on the basis
thereof were null and void. The petitioner also alleged in her complaint
that she was already 73 years old.
To support her application for a writ of preliminary injunction, the
petitioner alleged the following:
a. Plaintiff, as shown in the preceding paragraphs and indubitably by
the Assignment of Sale Certificate No. 722 dated November 4, 1926
(Annex A hereof), is the absolute owner of the subject parcel of land,
Lot 896 Tala Estate, and, as such, she has the right to be protected
from further acts of land grabbing and acts of dispositions by the
defendants-developers;
substantial portions are bent to continue to further subdivide and sell
the other portions of the subject properties of the plaintiff if not ordered
to desist by at least a temporary restraining order and, thereafter, by
writ of preliminary injunction;
c. Plaintiff has already suffered and will inevitably continue to suffer
grave and irreparable damages and injuries if defendants-developers
and/or their privies or transferees-in-interest, the herein other
defendants, are not prevented from further subdividing and selling
subdivided lots of the subject parcel of land and from building
structures and introducing other improvements thereon;
d. Plaintiff is ready to put up the bond in such amount reasonably fixed
to answer for any damage in the event that plaintiff is finally adjudged
as not to be entitled to relief of injunction.[9]
In his answer[10] to the complaint, the respondent asserted, among
others, that he bought Lot 896 in good faith and for valuable
consideration. Contrary to the petitioners claim that the property was in
her possession,[11] it was he who had been in continuous possession
thereof. Moreover, as against the Deed of Assignment of Sale Certificate
No. 722, the title issued under his name, TCT No. 270862, should
prevail.[12]
Upon motion of the petitioner, the trial court ordered the
consolidation of Civil Case No. C-537 with another case relating to Lot
896, Civil Case No. C-17659, earlier filed and pending with the RTC,
Branch 130,[13] presided by Judge Jaime T. Hamoy.[14]
During the August 20, 1999 hearing of the petitioners plea for a
writ of preliminary injunction, Santos Alberca was presented as witness.
Alberca testified that he was somehow related to the petitioner[15] and
had been the overseer of the latters property, Lots 896, 897 and 899,
since 1994.[16]He narrated that when squatters occupied a portion of the
property, he confronted them and demanded proof of their title; the latter
failed to do so. Alberca admitted, however, that the petitioner had no
proof that the subject properties were in her name,[17] and that he was
not aware whether there was a proceeding, testate or intestate,
concerning the estate of the late Severino Gonzales, the petitioners
alleged father. The respondent did not adduce any evidence.
On June 4, 2002, the trial court issued an Order[18] granting the
application for a writ of preliminary prohibitory injunction, enjoining the
defendants therein from further subdividing the disputed parcel of land
known as Lot 896 of the Tala Estate located in Camarin, Caloocan City,
and from selling or encumbering, or otherwise, negotiating any portion
thereof and from building or constructing any structures or
improvements thereon, as well as from bulldozing, leveling or scrapping
or excavating any portion thereof or from the entry of any illegal
occupants or any portion thereof and from committing further acts of
dispossession thereon, upon posting, by the petitioner as the plaintiff
therein, of an injunctive bond in the amount of One Million Pesos
(P1,000,000.00). The trial court ruled that, based on the Assignment of
Sale Certificate dated November 4, 1926 and being the lone heir of the
Spouses Gonzales, the petitioner became the owner of Lots 896, 897
and 899. Thus, the trial court concluded that the title over Lot 896 issued
to the respondent was spurious and falsified.[19]
After the petitioner posted a bond of P1,000,000.00, the trial court
issued a writ of preliminary prohibitory injunction[20] on July 1, 2002,
enjoining the respondent and the other defendants and all their
attorneys, representatives, agents and other persons assisting them, or
acting in their behalf or who derived their rights and occupancy from
them, from developing, moving, leveling or hauling earth; from further
subdividing any portion of Lot 896 of the Tala Estate, situated in
Caloocan City; from constructing/building any structure thereon of any
kind or enclosing any portion thereof with fence; from selling or offering
to sell, leasing or, otherwise, occupying any portion thereof; and from
further introducing or allowing any entry of other persons in any portion
of the said lot.[21]
The Sheriffs Partial Report[22] dated August 19, 2002 stated that
the defendants refused to comply with the said writ of injunction issued
by the court. Thus, on August 23, 2002, the petitioner filed a motion for
the issuance of a writ of preliminary mandatory injunction, serving a copy
thereof on the respondent on August 22, 2002.[23]
 For his part, the respondent filed a motion for the dissolution[24] of
the writ of preliminary injunction which the trial court issued on July 1,
2002, alleging that the petitioner had no torrens title over Lot 896. He
further alleged that as it appears from the face of TCT No. 87075 issued
in the name of Angelina Sarangaya and TCT No. 270862, the title issued
in his name, the subject property was free from any liens, claims or
encumbrances of whatever nature. He, likewise, alleged that the
petitioner could amply protect whatever right she had over the
property via an annotation of a notice of lis pendens. Finally, the
respondent claimed that he was never notified of the hearing for the
issuance of a writ of preliminary injunction nor furnished with a copy of
the trial courts June 4, 2002 Order.
On December 12, 2002, the trial court issued an Order[25] denying
the motion to dissolve the writ of preliminary injunction. On even date,
the trial court issued another order[26] granting the petitioners application
for a writ of preliminary mandatory injunction on a bond
of P2,000,000.00.[27] On January 16, 2003, the trial court issued a writ of
preliminary mandatory injunction[28] ordering Sheriff Perseverando C.
Pangan to place the petitioner in the possession of Lot 896 of the Tala
Estate.
The respondent received a copy of the writ of preliminary
mandatory injunction on December 26, 2002, with an accompanying
notice from the sheriff ordering him to vacate the property. On January
21, 2003, the respondent filed a petition for certiorari [29] under Rule 65
of the Revised Rules of Court with the Court of Appeals (CA) for the
nullification of the June 4, 2002 and December 12, 2002 Orders of the
trial court. The case was docketed as CA-G.R. SP No. 75020.
Based on the Sheriffs Partial Report[30] dated January 24, 2003,
stating that there were structures erected in the subject property, the
petitioner forthwith filed a motion in the trial court for their removal
therefrom on February 4, 2003.[31]
In his petition before the CA, the respondent alleged that aside
from the Deed of Assignment of Sale Certificate No. 722, the petitioner
had no other documentary or testimonial evidence to prove her
ownership over the property. He averred that the petitioner failed to
secure a torrens title over the property over a span of 70 years. The
respondent, likewise, pointed out that even if Assignment of Sale
Certificate No. 722 was, indeed, forged, the petitioner nevertheless
failed to adduce evidence of his participation therein. He also alleged
that the assailed orders and writs of the trial court, in effect, disposed of
the main case, and maintained that he could not be deprived of his
possession of the property via a writ of preliminary mandatory injunction.
He reiterated that he purchased the subject property in good faith and
for valuable consideration.
On April 30, 2003, the CA rendered judgment giving due course
and granting the petition. The appellate court held that in issuing the
assailed orders and writs against the respondent, the trial court
committed a grave abuse of its discretion. The petitioner filed a motion
for reconsideration of the decision, which was denied by the appellate
court. She then filed the instant petition for review on certiorari, alleging
that the CA erred in not dismissing the respondents petition
for certiorari for having been filed out of time, and that the appellate
court, likewise, erred in nullifying the assailed orders and writs issued by
the trial court.
The petitioner avers that the respondent filed his petition for
certiorari with the CA only on January 21, 2003, well beyond the sixty
(60)-day period therefor, counted from his receipt of the trial courts June
4, 2002 Order, granting her plea for a writ of preliminary prohibitory
injunction. She asserts that the CA should have dismissed the same on
such ground.
In his comment on the petition, the respondent avers that he was
never officially served with a copy of the June 4, 2002 Order of the trial
court.
We have meticulously reviewed the records and find that, indeed,
the respondent was not served with a copy of the trial courts June 4,
2002 Order. The records show that while the respondent was
represented by the Kapunan Imperial Panaguiton & Bongolan Law Firm,
such counsel was not among those who were furnished copies of the
said order by registered mail.[32] Even in the Sheriffs Partial Return dated
August 19, 2002, there is no showing that a copy of the writ of
preliminary injunction issued by the trial court on July 1, 2002 was
served on the respondent and/or through his counsel.
The Court also notes that the respondents counsel was not even
served with a copy of the petitioners application for a writ of preliminary
mandatory injunction filed on August 23, 2002. The respondent was
personally served with a copy thereof on August 22, 2002, in which it
was merely alleged that the trial court issued an Order on June 4, 2002,
granting the petitioners plea for a writ of preliminary injunction, and that
a writ of preliminary prohibitory injunction was, likewise, issued on July
1, 2002. The respondent then filed his motion for the dissolution of the
July 1, 2002 Writ of Preliminary Injunction on August 29, 2002 and filed
his Opposition dated September 5, 2002 to the petitioners application
for a writ of preliminary mandatory injunction. Upon his receipt on
December 26, 2002 of the trial courts December 12, 2002 Order granting
the petitioners application for a writ of preliminary mandatory injunction
and denying his motion for the dissolution of the July 1, 2002 Writ of
Preliminary Injunction, the respondent filed his petition for certiorari with
the CA on January 21, 2003. Under Section 4, Rule 65 of the Rules of
Court, the sixty (60)-day period shall be counted from receipt of the
notice of the resolution denying the motion for reconsideration of the
assailed order of the tribunal:
Sec. 4. When and where petition filed. The petition shall be filed not
later than sixty (60) days from notice of the judgment, order or
resolution. In case a motion for reconsideration or new trial is timely
filed, whether such motion is required or not, the sixty (60) day period
shall be counted from notice of the denial of said motion.
The petition shall be filed in the Supreme Court or, if it relates to the
acts or omissions of a lower court or of a corporation, board, officer or
person, in the Regional Trial Court exercising jurisdiction over the
territorial area as defined by the Supreme Court. It may also be filed in
the Court of Appeals whether or not the same is in aid of its appellate
jurisdiction, or in the Sandiganbayan if it is in aid of its appellate
jurisdiction. If it involves the acts or omissions of a quasi-judicial
agency, unless otherwise provided by law or these rules, the petition
shall be filed in and cognizable only by the Court of Appeals.
No extension of time to file the petition shall be granted except for
compelling reason and in no case exceeding fifteen (15) days.
Thus, the respondents petition for certiorari before the CA filed on
December 26, 2002 assailing the December 12, 2002 Order of the RTC
denying his motion to dissolve the July 1, 2002 Writ of Preliminary
Injunction issued by the trial court and granting the petitioners
application for a writ of preliminary mandatory injunction was filed well
within the sixty (60)-day reglementary period therefor.
The petitioner asserts that the CA focused on the probative weight
of the evidence adduced before the trial court instead of on the issue of
whether the said court committed grave abuse of its discretion
amounting to excess or lack of jurisdiction in issuing the assailed orders
and writs of preliminary prohibitory and mandatory injunction. Worse, the
petitioner argues, the findings of the trial court which were based on the
evidence adduced by her and as pointed out in her Memorandum were
reversed by the CA. She insists that she has a clear legal right over Lot
896 which justified the issuance of the writs of preliminary injunction
(prohibitory and mandatory). The petitioner maintains that in granting the
respondents petition for certiorari, the appellate court relied solely on
unproven facts and failed to differentiate a writ of prohibitory injunction
from a writ of preliminary mandatory injunction.
The petitioners contentions have no factual and legal basis.
The RTC Committed Grave Abuse of
Its Discretion Amounting to Excess
of Jurisdiction in Issuing the June 4,
2002 and December 12, 2002 Orders,
as well as the July 1, 2002 Writ of
Preliminary Prohibitory Injunction.
Prefatorily, the findings and conclusions of the trial court on the
propriety of the issuance of injunctive writs are premised solely on initial
evidence and should be considered merely as provisional.[33] Section 3,
Rule 58 of the Rules of Court provides that a preliminary injunction may
be granted when the following are established:
(a) That the Applicant is entitled to the relief demanded, and the whole
or part of such relief consists in restraining the commission or
continuance of the act or acts complained of, or in requiring the
performance of an act or acts, either for a limited period or perpetually;
(b) That the commission, continuance or non-performance of the act or
acts complained of during the litigation would probably work injustice to
the applicant; or
(c) That the party, court, agency or a person is doing, threatening, or is
attempting to do, or is procuring or suffering to be done, some act or
acts probably in violation of the rights of the applicant respecting the
subject of the action or proceeding, and tending to render the judgment
ineffectual.
An injunctive writ may be issued when the following requisites are
established:
1. The invasion of the right is material and substantial;
2. The right of complainant is clear and unmistakable;
3. There is an urgent and permanent necessity for the writ to prevent
serious damage.[34]
Thus, the petitioner, as plaintiff, was burdened to adduce
testimonial and/or documentary evidence to establish her right to the
injunctive writs. It must be stressed that injunction is not designed to
protect contingent or future rights, and, as such, the possibility of
irreparable damage without proof of actual existing right is no ground for
an injunction.[35] A clear and positive right especially calling for judicial
protection must be established. Injunction is not a remedy to protect or
enforce contingent, abstract, or future rights; it will not issue to protect a
right not in esse and which may never arise, or to restrain an action
which did not give rise to a cause of action. There must be an existence
of an actual right.[36]Hence, where the plaintiffs right or title is doubtful or
disputed, injunction is not proper.
An injunctive remedy may only be resorted to when there is a
pressing necessity to avoid injurious consequences which cannot be
remedied under any standard compensation.[37] The possibility of
irreparable damage without proof of an actual existing right would not
justify injunctive relief in his favor.[38]
In deciding whether to grant an injunction, a court must consider
established principles of equity and all the circumstances of the case.
The test for issuing an injunction is whether the facts show a necessity
for the intervention of equity in order to protect rights cognizable in
equity.[39]
In general, a trial courts decision to grant or to deny injunctive
relief will not be set aside on appeal unless the court abused its
discretion. In granting or denying injunctive relief, a court abuses its
discretion when it lacks jurisdiction, fails to consider and make a record
of the factors relevant to its determination, relies on clearly erroneous
factual findings, considers clearly irrelevant or improper factors, clearly
gives too much weight to one factor, relies on erroneous conclusions of
law or equity, or misapplies its factual or legal conclusions. [40] In the
absence of a clear legal right, the issuance of the injunctive writ
constitutes grave abuse of discretion. As the Court had the occasion to
state in Olalia v. Hizon:[41]
It has been consistently held that there is no power the exercise of
which is more delicate, which requires greater caution, deliberation and
sound discretion, or more dangerous in a doubtful case, than the
issuance of an injunction. It is the strong arm of equity that should
never be extended unless to cases of great injury, where courts of law
cannot afford an adequate or commensurate remedy in damages.
Every court should remember that an injunction is a limitation upon the
freedom of action of the defendant and should not be granted lightly or
precipitately. It should be granted only when the court is fully satisfied
that the law permits it and the emergency demands it.[42]
The trial court granted the petitioners plea for the issuance of a
writ of preliminary prohibitory injunction anchored on the following
findings it made in light of the evidence presented: (a) Severino
Gonzales acquired equitable title over Lot 896 based on the deed of
assignment executed by Nicanor Jacinto of his rights as vendee under
Certificate of Sale No. 722; (b) the petitioner inherited the property, being
the daughter and sole heir of Severino Gonzales; (c) considering that
Certificate of Sale No. 722 and TCT No. 4477 were issued on the same
date and time as appearing on pages 127 and 145 of the Registry Book,
TCT No. 4477 was clearly spurious; and (d) the writs issued were
needed to prevent the influence of squatters, the sale or lease of
portions of the property to innocent third parties, and the construction of
illegal structures thereon.[43]
On the other hand, the CA ruled that the RTC committed a grave
abuse of its discretion amounting to excess of jurisdiction in granting the
petitioners plea for a writ of preliminary injunction, thus:
For a petition for a writ of preliminary injunction to prosper, it must be
shown that the invasion of the right sought to be protected is material
and substantial, that the right of complainant is clear and unmistakable,
and that there is an urgent and paramount necessity for the writ to
prevent serious damage. The requisites for an injunctive writ to be
issued are: (1) that the petitioner/applicant must have a clear and
unmistakable right; (2) that there is a material and substantial invasion
of such right; and (3) that there is an urgent and permanent necessity
for the writ to prevent serious damage.
In the case at bar, private respondent failed to show, at least for now,
that she has a clear legal right over the subject property. She has not
presented any valid title nor has she ever been in effective control and
possession of the property she claims to be her own. Private
respondent did not and failed to present specific acts of ownership to
substantiate her claim of ownership and should not have just offered
mere allegations of facts and conclusions of law, but factual evidence
of possession and/or ownership of the property. Private respondents
reliance on her claim that she inherited the subject property from her
alleged father, Severino Gonzales, who was purportedly an assignee
in an Assignment of Sale executed sometime on November 4, 1926, is
not substantial enough to establish her clear and unmistakable right
over the subject property. On the contrary, it is the petitioner who has
title to the property, as evidenced by Transfer Certificate of Title No.
270862, issued in his name, on September 16, 1993, by the Register
of Deeds of Caloocan City. Although title does not vest ownership,
a torrens certificate is evidence of an indefeasible title to property in
favor of the person whose name appears thereon.
Finally, private respondent also failed to show the existence of extreme
urgency necessitating the issuance of the assailed writ to prevent
serious damage to her. As pointed out earlier, she possesses no clear
title to the property nor is she in effective control and possession of the
same, such that, there is no urgent and paramount necessity for the
writ to issue for the purpose of preventing serious damage to the
private respondent. On the contrary, it is the petitioner who stands to
suffer great damage and injury, as he stands to lose in the meantime,
his factory situated on the subject property, if and when the writ issued
by the respondent judge is implemented.
As a final point, this court finds it disturbing, the premature if not
unsupported conclusion of the respondent judge as regards the title of
the petitioner and that of the other co-defendants, holding that the
latter have no right whatsoever over the property in litigation, on the
basis only of the allegation contained in the complaint and the
attachments thereto, and the bare testimony of a supposed overseer of
the private respondent over the property. It would appear to us that the
respondent judge had already arrived at a conclusive finding of
ownership of the subject property, which finding of ownership in favor
of the private respondent is still improper at that stage of the
proceeding. While in general, courts should avoid issuing a writ of
preliminary injunction which, in effect, disposes of the main case
without trial, this is precisely the effect of the writ of preliminary
mandatory injunction issued by the respondent judge.[44]
We have reviewed the records and find that the decision of the CA
is in accord with law. Contrary to the petitioners assertion, the appellate
court, in fact, resolved the issue of whether the trial court committed a
grave abuse of its discretion in issuing the assailed orders, and, in so
doing, based its decision on the records and the evidence adduced by
the petitioner.
First. The petitioner failed to prove, by any of the means provided
by law,[45] that she is the daughter and only heir of Severino Gonzales.
Filiation and paternity must be judicially established. It cannot be left to
the will or agreement of the parties.[46] The Court notes that the petitioner
opted not to testify. She relied solely on the testimony of Santos Alberca,
who testified on direct examination that the petitioner was his aunt, and,
being the only child and heir of Severino Gonzales, was the owner of the
property.[47] However, on cross-examination, Alberca could not explain
how he became the petitioners nephew, and could not describe the
nature of his filiation with her:
Q: You said that the plaintiff is your aunt. Can you explain how
she became your aunt?
A: The Almeda family is the cousin of family. I cannot explain very well
because it is very long time ago, but I am recognized by Almeda
Gonzales as a nephew and I recognize her as my aunt.
Q: Is that the best way you can explain your answer?
A: I cannot remember exactly the family tree of Almeda Gonzales and
my family.[48]
Second. Even assuming, gratia arguendi, that she is really the
daughter of the Spouses Gonzales, the petitioner still failed to adduce a
morsel of evidence to prove that she inherited Lot 896 upon their death
in 1940 and 1942. As gleaned from the appendages of the complaint,
Lot 896 was deeded to Nicanor Jacinto by the government on July 10,
1910 under Certificate of Sale No. 722 executed by the Director of the
Bureau of Lands. On November 4, 1926, Jacinto executed a Deed of
Assignment of Certificate of Sale No. 722, approved by the Director of
the Bureau of Lands, in favor of Severino Gonzales and Juana Libertad.
The said deed became legally effective upon its filing with the Bureau of
Public Lands and the approval thereof by the Director of
Lands.[49] Hence, Severino Gonzales became the equitable owner of the
property under the deed of assignment,[50] and upon his execution of the
Deed of Assignment in favor of Pedro Gonzales and Aleja Gonzales, the
latter, likewise, became the equitable owners of the property. When the
Spouses Gonzales died in 1940 and 1942, they were no longer the
owners/assignees of Lot 896. Hence, the petitioner could not have
inherited the said property from her parents. As the Latin adage
goes: NEMO DAT QUOD NON HABET.
Third. The petitioner failed to adduce a scintilla of evidence to
prove her claim that the Deed of Assignment of Certificate of Sale
executed by Severino Gonzales in favor of Pedro and Aleja Gonzales is
a forgery or a falsification. Case law has it that forgery or falsification
cannot be presumed. He who alleges forgery has the burden of proving
the same by clear and convincing evidence.[51] Thus, forgery cannot be
proved by mere conjectures, surmises or speculations. The bare fact
that TCT Nos. 4477 and 4495 were issued on the same day but were
recorded on the book of registry on pages 127 and 145 thereof does not
constitute clear proof that the said titles are spurious. There is no
showing that Book No. T-284 in which page 127 appears is the same
registry book where TCT No. 4495 appears. The Court further notes that
the petitioner failed to present the Register of Deeds to explain the
discrepancy alluded to by her.
Fourth. The petitioner herself alleged in her complaint that based
on the said deed of assignment in favor of Pedro and Aleja Gonzales,
TCT No. 42126 was issued by the Register of Deeds on January 9, 1941
in favor of the said assignees. TCT No. 270862 was issued to Marcelina
Sarangaya over Lot 896 based on a Deed of Sale executed in her favor
on May 23, 1961. However, the Spouses Gonzales failed to file any
action to nullify the said deed of assignment before their death in 1940
and 1942. Neither did the petitioner file any action to nullify the said deed
of assignment and the said titles until January 23, 1998, when she finally
filed her complaint against the respondent and the other defendants in
the RTC. Considering her allegation in the complaint that she was
already 73 years old, she must have been born sometime in 1925.
Prescinding therefrom, the petitioner must have already been more than
20 years old shortly after the Second World War, yet, she failed to file
any action, either for the nullification of the said deed of assignment, or
to request the Bureau of Lands for an investigation relating to Severino
Gonzales execution of the Deed of Assignment in favor of Pedro and
Aleja Gonzales and the approval thereof by the Bureau of Lands for
more than forty (40) years. The petitioners unexplained and resounding
silence and inaction for such a considerable length of time enfeebles her
plea for injunctive reliefs. If one maintains silence, when in conscience
he ought to speak, equity will debar him from speaking, when in
conscience he ought to remain silent. He who remains silent when he
ought to speak cannot be heard to speak when he should be silent. [52]
Fifth. The respondent is the registered owner of Lot 896 under
TCT No. 270862 issued on September 16, 1993. A perusal of the said
title shows that the property is free from any liens and/or encumbrances.
Moreover, there is no evidence on record that the respondent is a buyer
in bad faith. It is settled doctrine that one who deals with property
registered under the Torrens system need not go beyond the same, but
only has to rely on the title. He is charged with notice only of such
burdens and claims as are annotated on the title.[53] It is, likewise, settled
that a fraudulent or forged document of sale may give rise to a valid title
if the certificate of title has already been transferred from the name of
the true owner to the name indicated by the forger and while it remained
as such, the land was subsequently sold to an innocent purchaser. The
vendee, in such case, has the right to rely upon the certificate of title.[54]
Moreover, the respondent constructed his factory on the said
property in 1994 sans any plaint from the petitioner or Alberca. Thus,
being the registered owner of the property in question, he is entitled to
the possession thereof.[55]
Sixth. The petitioner failed to prove that she would suffer
irreparable injury which cannot be adequately compensated unless the
trial court issued a writ of preliminary prohibitory injunction. To repeat,
the petitioner failed to testify. She even failed to prove her claim that,
through her overseer, she had been in actual physical possession of the
property since her parents death before the Second World War up to the
time she filed her complaint. Alberca testified that he became the
petitioners overseer only five years before he testified on August 20,
1999, or sometime in 1994, and that he was unaware of any overseer of
the petitioner over the property:
Q: Since when have you been the overseer of the plaintiff with regards
to Lot 896?
A: Five years ago, Sir.
Q: Prior to five years before you came in, do you know if there was any
overseer employed by the plaintiff with regards to Lot 896?
A: No, Sir.[56]
It is worthy to note that the petitioner failed to present any other
caretaker or overseer over the property.
The RTC Committed Grave Abuse
of Discretion Equivalent to Excess
of Jurisdiction When It Granted
Petitioners Plea for a Writ of
Preliminary Mandatory Injunction
The CA nullified the trial courts December 12, 2002 Order granting
the petitioners motion for a writ of preliminary mandatory injunction,
ratiocinating as follows:
Likewise, it is also the petitioner who has been in possession of the
property from the time he purchased the same from Marcelina
Sarangaya on September 9, 1993. A possessor of real estate property
is presumed to have title thereto unless the adverse claimant
establishes a better right. To summarily oust petitioner of his
possession of the property which he has title to and possession of, is
simply contrary to existing and settled jurisprudence. A court should
not by means of a preliminary injunction transfer the property in
litigation from the possession of one party to another where the legal
title is in dispute and the party having possession asserts ownership
thereto.
Finally, private respondent also failed to show the existence of extreme
urgency necessitating the issuance of the assailed writ to prevent
serious damage to her. As pointed out earlier, she possesses no clear
title to the property nor is she in effective control and possession of the
same, such that there is no urgent and paramount necessity for the
writ to issue for the purpose of preventing serious damage to the
private respondent. On the contrary, it is the petitioner who stands to
suffer great damage and injury, as he stands to lose in the meantime,
his factory situated on the subject property, if and when the writ issued
by the respondent judge is implemented.[57]

We agree with the CA. As we ruled in Subic Bay Metropolitan

Authority v. Universal International Group of Taiwan:[58]

A writ of mandatory injunction requires the performance of a particular

act and is granted only upon a showing of the following requisites:

1. The invasion of the right is material and substantial;

2. The right of a complainant is clear and unmistakable;

3. There is an urgent and permanent necessity for the writ to prevent

serious damage.[59]

It bears stressing that the respondent is the registered owner of

the property; hence, he is entitled to the possession thereof. As a rule,
a writ of preliminary mandatory injunction is not granted to take property
out of the possession or control of one party to be placed into that of
another whose title has not been clearly established by law. [60] In this
case, the petitioner failed to establish a clear and unmistakable right to
the possession of the property and to a writ of preliminary mandatory
injunction. The trial court principally relied on mere allegations in the
complaint, the appendages thereof, and the meager evidence on record.
Moreover, the respondent would suffer serious damage if he would be
ousted of his possession of the property and his factory demolished.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for

lack of merit. The assailed Decision of the Court of Appeals is
AFFIRMED. Costs against the petitioner.

SO ORDERED.

Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario,

JJ., concur.
 SECOND DIVISION
[G.R. No. 152440. January 31, 2005]
FELICITACION B. BORBAJO, petitioner, vs. HIDDEN VIEW
HOMEOWNERS, INC., SPS. MARCELINA A. SARCON,
ELY D. SARCON, ROBERTO ALVAREZ, CORAZON
NOMBRADO, and GILBERT ANDRALES, in their personal
capacities, respondents.
DECISION
TINGA, J.:
Before this Court is a Rule 45 petition assailing the
Decision[1] dated 21 September 2001 of the Court of Appeals which
reversed the Decision[2] dated 14 September 1999 of the Regional Trial
Court (RTC) of Cebu City, Branch 58.
The factual antecedents are as follows:
Jose C. Bontuyan (Bontuyan), Lucy Solon, Georgina Solon, Helen
Solon and Vicente Solon, Jr. (the Solons) were the registered owners of
a parcel of agricultural land (Lot 10183-A), covering an area of 13,910
square meters situated at Barangay Bacayan, Cebu City as evidenced
by Transfer Certificate of Title (TCT) No. 73709 of the Register of Deeds
of Cebu City.[3] At the instance of Bontuyan, the property was surveyed
on 19 May 1991 to convert it into a subdivision. On 6 June 1991, the
corresponding subdivision plan, showing three (3) road lots as such, was
submitted to the Cebu Office of the Department of Environment and
Natural Resources (DENR). On 24 July 1991, the Regional Technical
Director of the DENR, Lands Management Sector, Region Office VII, in
Cebu, approved the subdivision plan.[4] Meanwhile, in his own behalf
and as attorney-in-fact of the Solons and following the subdivision
scheme in the plan, Bontuyan sold the resulting lots to different
individuals,[5]as evidenced by the Deed of Absolute Sale[6] dated 18
June 1991.
Among the lots sold are the ones which later became the subject
of this case, the three (3) road lots. The road lots were sold to petitioner
Felicitacion B. Borbajo, married to Danilo S. Borbajo, and Prescillana B.
Bongo (Bongo), married to Patricio P. Bongo.[7] However, they obtained
the titles to the lots more than a month later on 30 July 1991.[8]
Using the advance payments of his lot purchasers, Bontuyan
proceeded to develop a subdivision which was later named Hidden View
Subdivision I by its residents and homeowners.[9] Later, he applied for
and secured from the Housing and Land Use Regulatory Board
(HLURB) a License to Sell[10] dated 29 July 1991.
Borbajo also decided to develop into a subdivision the other
properties adjacent to Hidden View Subdivision I which she acquired.
Thus, she applied for and received SSA 674-5-94 issued by the Cebu
City Planning and Development Department, covering the parcel of land
embraced by TCT No. 127642, to be subdivided into twenty-three (23)
lots.[11] She named this new subdivision ST Ville Properties. On 29 July
1994, she secured Certificate of Registration No. 05005 for the ST Ville
Properties project and a License to Sell the same from the HLURB. She
also secured a Certificate of Registration dated 18 August 1994 for
another subdivision project called Hidden View Subdivision IIfrom the
HLURB, with the corresponding License to Sell issued on 16 August
1994. The two new subdivision projects were located at the back
of Hidden View Subdivision I.
The residents and homeowners of Hidden View
Subdivision I heard reports to the effect that Borbajo had purchased the
entire subdivision from Bontuyan through an oral agreement. They also
heard that they have no right to use the road lots, since the lots have
already been registered in Borbajos name. As a consequence, the
Hidden View Homeowners, Inc. invited Borbajo to a meeting. When
confronted by the homeowners about her claim that she had bought the
subdivision from Bontuyan, Borbajo confirmed her claim of ownership
over the subdivision and the road lots. She also told them that they have
no right regarding the road right-of-way.[12]
The incident prompted the homeowners of Hidden View
Subdivision I to inquire with the HLURB about the validity of the
registration of the subdivision road lots in the name of Borbajo. They
also asked whether she had the necessary documents for the
development of Hidden View Subdivision II and ST Ville Properties. In a
letter[13] dated 17 March 1997, HLURB Regional Officer Antonio
Decatoria, Sr. replied that under the law the owner or developer of the
subdivision should have legal title or right over the road lots of the
subdivision and that if the title or right is in the name of other persons it
follows that there is failure to comply with the requirements of the law.
The HLURB Officer pointed out that Hidden View Subdivision II and ST
Ville Properties had not filed an application for registration and license
to sell with the HLURB.[14]
On 10 August 1997, the homeowners caused the construction of
a guardhouse at the entrance of Hidden View Subdivision I and hired
the services of a security guard to prevent unauthorized persons and
construction vehicles from passing through their subdivision. The
measures adversely affected the residents of the subdivisions at the
back, as well as Borbajo herself since her delivery trucks and heavy
equipment used in the construction of her housing projects then on-
going had been effectively prevented from passing through the road
lots.[15]
On 28 August 1997, Borbajo filed before the RTC of Cebu City,
Branch 58, an action for damages and injunction against Hidden View
Homeowners, Inc., spouses Marcelina A. Sarcon and Ely D. Sarcon,
Roberto Alvarez and Corazon Nombrado and Gilbert Andrales
(respondents herein). Borbajo prayed for the issuance of a temporary
restraining order (TRO) directing respondents to maintain the status
quo and to desist from preventing her delivery trucks and other
construction vehicles, and her construction workers, from passing
through the road lots, and, after hearing on the merits, that judgment be
rendered making the restraining order or preliminary injunction
permanent and ordering the defendants to pay damages.[16]
The trial court issued a TRO effective for seventy-two (72) hours.
After due hearing, it also granted Borbajos application for a writ of
preliminary injunction. It denied respondents motion to dismiss on the
ground that it is the HLURB which has jurisdiction over the case.[17]
After trial, the trial court rendered its decision dated 14 September
1999, the dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered
enjoining the defendants to close [sic] the road lots in question, hence,
making the injunction permanent, subject to the right of the defendants
to regulate the passage thereof by the plaintiff and the general public;
and directing the plaintiff to donate the road lots in question to the
government of Cebu City. No pronouncement as to any damages and
as to costs.
SO ORDERED.[18]
On appeal, the Court of Appeals reversed the lower court
decision. The decretal portion of the appellate courts decision dated 21
September 2001 reads:
WHEREFORE, premises considered, the present appeal is hereby
GRANTED. The appealed Decision in Civil Case No. CEB-20796 is
hereby REVERSED and SET ASIDE and a new one is hereby
rendered DISMISSING the complaint. The counterclaim of defendants-
appellants is likewise dismissed for lack of legal and factual bases.
No pronouncement as to costs.
SO ORDERED.[19]
Undaunted, Borbajo elevated the case to this Court.
In her petition, Borbajo imputes error to the appellate court (a) in
reversing the decision of the trial court which declared her to be the
developer of Hidden View Subdivision I, (b) in finding that she had
fraudulently secured the registration of the three (3) road lots, and (c) in
declaring that she is not entitled to the injunctive relief. [20]
Borbajo contends that the appellate court erred in reversing the
finding of the RTC that she is the developer of Hidden View Subdivision
I. According to her, and as borne out by her testimony before the RTC,
she was the true developer of Hidden View Subdivision I even though
the License to Sell was issued in the name of Bontuyan. The appellate
court allegedly violated prevailing jurisprudence when it held that she
fraudulently secured the registration of the three (3) road lots since a
certificate of title cannot be collaterally attacked except in direct
proceedings instituted for that purpose. In fact, Hidden View
Homeowners, Inc. has filed a separate case for annulment of title
against Borbajo which is now pending before Branch 9 of the RTC of
Cebu City. Further, she claims that she is entitled to the injunctive relief
considering that she is the registered owner of these road lots in
question and, hence, she has a right in esse which deserves legal
protection.[21]
On the other hand, respondents argue that the sale of the road
lots made by Bontuyan in favor of Borbajo was illegal and contrary to the
provisions of Presidential Decree (P.D.) No. 957 which requires that the
road lots in a subdivision development shall be in the name of the
developer or owner, of which Borbajo is neither. [22] They aver that
Borbajo fraudulently obtained her titles to the road lots through a falsified
deed of sale which was the document presented to the Office of the
Register of Deeds.[23]They also point out that the use by Borbajo of the
road lots for the ingress and egress of heavy equipment has
continuously resulted in the rapid deterioration of the roads. Moreover,
the road lots are not the nearest point between the development project
of Borbajo and the provincial road.[24] Finally, they assert that they are
merely exercising acts of ownership which include the right to prevent
others from enjoying the thing owned by them. Respondents oppose the
issuance of a preliminary injunction because notwithstanding the
registration of the subject road in Borbajos name, her title thereto is
tainted by the discovery of fraud she allegedly perpetrated in securing
the questioned titles.[25]
The result which Borbajo seeks to achieve which is to reinstate
the preliminary injunction issued by the lower court has to be granted,
but not for the reasons which she has raised nor for the grounds which
the lower court relied upon.
The ultimate question for resolution is whether respondents may
legally prevent Borbajo from using and passing through the three (3)
road lots within Hidden View Subdivision I. It is worthy of note that the
right of respondents to use the road lots themselves is not in dispute.
In resolving the controversy, the lower court addressed only the
issue of whether respondents have the right to close the road lots, and
the question of damages.[26] It concluded that respondents cannot
legally close the road lots because these are intended for public use. It
opted not to resolve the question pertaining to the validity of Borbajos
acquisition of the road lots and her title thereto on the ground that a
Torrens title cannot be collaterally attacked.[27]
For its part, the Court of Appeals addressed the trial courts errors
assigned by the respondents herein. The trial court allegedly erred in:
(a) finding that Borbajo was the developer of Hidden View Subdivision I;
(b) finding that the manner by which Borbajo acquired the road lots is
irrelevant to the resolution of the issues in this case; (c) finding that the
road lots are open to the public and the only right of the residents therein
is to regulate its use; (d) not finding that the elements of an easement of
a right-of-way are not present; (e) finding that the injunction was properly
issued and the court ordered Borbajo to donate the road lots in favor of
the local government unit; and (f) failing to award damages to the
respondents.[28]
The appellate court found that the injunctive writ was erroneously
issued as the same was not based on an actual right sought to be
protected by law. The fact that Borbajo was the developer of Hidden
View Subdivision I was not clearly established by evidence. Although
Borbajo has claimed that she was the developer of the subdivision and
that Bontuyans name was indicated in the License to Sell, such claim
carried scant weight in the absence of a certificate of registration of the
subdivision project issued in her name by the HLURB and other
documents which prove that she was indeed the developer. [29] Further,
the appellate court ruled that the fact of registration of the road lots in
Borbajos name was insufficient to defeat the right of the homeowners of
the subdivision and preclude them from regulating their use and
administration thereof in accordance with existing laws and
regulations.[30] It likewise held that Borbajo had not complied with the
requisites of a compulsory easement of right-of-way and pointed out the
general rule that mere convenience for the dominant estate is not what
is required by law as the basis for setting up a compulsory
easement.[31] Hence, this instant judicial recourse.
Noticeably, the appellate court dwelt at length on the question of
whether Borbajo was the developer of the Hidden View Subdivision I as
she claimed. Apparently, Borbajo submitted this point, with her focus set
on the provisions of P.D. No. 957, as amended, ordaining that road lots
may be titled only in the name of the owner of the subdivision or its
developer. In the process, however, the Court of Appeals lost sight of
the settled and decisive fact that Borbajo is one of the registered co-
owners of the road lots along with Bongo. The evidence reveals that
Borbajo and Bongo were issued TCTs, all dated 30 July 1991, for the
three (3) road lots situated within the Hidden View Subdivision I. These
titles were issued pursuant to the Deed of Absolute Sale dated 18 June
1991 which also mentioned the road lots as such.
As a registered co-owner of the road lots, Borbajo is entitled to
avail of all the attributes of ownership under the Civil Codejus utendi,
fruendi, abutendi, disponendi et vindicandi.[32] Article 428 of the New
Civil Code is explicit that the owner has the right to enjoy and dispose of
a thing, without other limitations than those established by law. A co-
owner, such as Borbajo, is entitled to use the property owned in common
under Article 486 of the Civil Code. Therefore, respondents cannot close
the road lots to prevent Borbajo from using the same.
The Court of Appeals ruled that the road lots cannot be sold to any
person pursuant to P.D. No. 957, as amended. It also pointed out that
fraud is manifest in the acquisition of titles thereto. However, it is a
settled rule that a Torrens title cannot be collaterally attacked.
It is a well-known doctrine that the issue as to whether title was
procured by falsification or fraud can only be raised in an action
expressly instituted for the purpose. A Torrens title can be attacked only
for fraud, within one year after the date of the issuance of the decree of
registration. Such attack must be direct, and not by a collateral
proceeding. The title represented by the certificate cannot be changed,
altered, modified, enlarged, or diminished in a collateral
proceeding.[33] The certificate of title serves as evidence of an
indefeasible title to the property in favor of the person whose name
appears therein.[34]
However, in upholding the efficiency value of the disputed titles for
purposes of the present petition, we are not foreclosing any future
determination by appropriate forum on the legality of Borbajos titles over
the road lots. Verily, a separate case for annulment of titles over the road
lots is now pending before the court. There are serious allegations that
the issuance of the TCTs over the road lots was tainted with fraud as
evidenced by alterations made on the face of the certificates and
discrepancies in the records of the contract of absolute sale filed before
the Office of the Register of Deeds and the Notarial Division of the RTC
of Cebu City.[35] If the court finds that the titles of Borbajo were obtained
fraudulently, her right to the road lots ceases as well as her right-of-way
by virtue of said titles.
In the meantime, however, we are bound by the value in law and
the evidentiary weight of the titles in the name of Borbajo. As long as the
titles are not annulled, Borbajo remains registered a co-owner and
therefore her right to use the road lots subsists.
Likewise, with Borbajo as a registered co-owner of the road lots,
it is utterly pointless to discuss whether she is entitled to the easement
of right of way. Both from the text of Article 649[36] of the Civil Code and
the perspective of elementary common sense, the dominant estate
cannot be the servient estate at the same time. One of the
characteristics of an easement is that it can be imposed only on the
property of another, never on ones own property. An easement can exist
only when the servient and the dominant estates belong to different
owners.[37]
Borbajo, being a registered co-owner of the three (3) road lots, is
entitled to the injunctive relief.
The requisites to justify an injunctive relief are: (a) the existence
of a right in esse or the existence of a right to be protected; and (b) the
act against which injunction is to be directed as a violation of such
right.[38] A preliminary injunction order may be granted only when the
application for the issuance of the same shows facts entitling the
applicant to the relief demanded.[39] A preliminary injunction is not proper
when its purpose is to take the property out of the possession or control
of one party and transfer the same to the hands of another who did not
have such control at the inception of the case and whose legal title has
not clearly been established.[40]
One final note. Respondents in their Answer[41] neither claimed
nor asked for the right to regulate the use of the road lots or that the road
lots be donated to the Cebu City Government. Thus, there was utterly
no basis for the trial court to include as it did its disposition along these
lines in the decretal portion of its decision.

WHEREFORE, the Decision of the Court of Appeals dated 21

September 2001 is REVERSED and SET ASIDE and the writ of
preliminary injunction issued by the Regional Trial Court of Cebu City,
Branch 58, is made permanent, subject to the final outcome of Civil Case
No. 21239 pending before the Regional Trial Court of Cebu City, Branch
9.

No costs.

SO ORDERED.

Puno, (Chairman), Austria-Martinez, and Chico-Nazario,

JJ., concur.
Callejo, Sr., J., on official leave.
 SPECIAL SECOND DIVISION
[G.R. NO. 152440 : December 6, 2006]
FELICITACION B. BORBAJO, Petitioner, v. HIDDEN VIEW
HOMEOWNERS, INC., SPS. MARCELINA A. SARCON, and ELY D.
SARCON, ROBERTO B. ALVAREZ, CORAZON NOMBRADO, and
GILBERT ANDRALES, in their personal capacities, Respondents.
RESOLUTION
TINGA, J.:
For resolution is a Motion for Reconsideration dated 21 March 2005
filed by respondents relative to the Court's Decision1 dated 31 January
2005. The dispositive portion of the Decision, which was in favor of
petitioner Felicitacion Borbajo, read as follows:
WHEREFORE, the Decisionof the Court of Appeals dated 21
September 2001 is REVERSED and SET ASIDE and the writ of
preliminary injunction issued by the Regional Trial Court of Cebu City,
Branch 58, is made permanent, subject to the final outcome of Civil
Case No. 21239 pending before the Regional Trial Court of Cebu City,
Branch 9.
No cost.
SO ORDERED.2
Respondents now argue that the aforementioned Civil Case No. 21239
pending before the Regional Trial Court (RTC) of Cebu City, Branch 9,
has since been resolved against petitioner, through a Decision dated
22 April 2003,3 which is apparently now final and executory.4 This
decision concluded that petitioner had fraudulently obtained the titles
over the three (3) road lots that were at the heart of that case, and this
case as well. The dispositive portion of this decision reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff
and against the defendants spouses Danilo S. Borbajo and Felicitation
B. Borbajo declaring null and void the deed of sale executed by Jose
Bontuyan (particularly the three road lots) in favor of defendants.
Consequently, TCT No. 117437, 117563 and 117564 are declared null
and void.
The Register of Deeds of Cebu City is directed to cancel said
certificates of title and to issue new ones reinstating the certificates of
title cancelled by the aforementioned certificates of title.
SO ORDERED.5
Parenthetically, it bears noting that petitioner Borbajo had died on 20
December 2002,6 a fact that was made known to the Court only during
the period for deliberation on the Motion for Reconsideration. Counsel
for petitioner manifests that her six (6) children, as her surviving legal
heirs, should be substituted in the present action. 7
It should be recalled that the instant case arose from a complaint for
injunction filed by petitioner against the respondents, praying that the
latter be enjoined from preventing the petitioner from passing thru or
otherwise making use of three (3) road lots inside Hidden View
Subdivision I. It so happened that these road lots were titled and
registered in the name of the petitioner. It was on that basis that the
Court held that petitioner was entitled to the writ of injunction, as she
could not be prevented from availing of all the attributes of ownership
under the Civil Code, as the owner of the road lots.8 The Court also set
aside the finding of the Court of Appeals that road lots cannot be sold
to any person, under Presidential Decree (P.D.) No. 957, as amended,
noting instead the settled rule that a Torrens title cannot be collaterally
attacked.9
Nonetheless, the Court observed that a separate case for annulment of
titles over the road lots was then pending before the courts, and it was
that case which would serve as the proper forum for the claims
regarding the legality of Borbajo's titles over the road lots. The Court
did state that if it were found "that the titles of Borbajo were obtained
fraudulently, her right to the road lots ceases as well as her right-of-
way by virtue of said titles."10Hence, the dispositive portion which made
the writ of preliminary injunction permanent was tagged with a qualifier
"subject to the final outcome of Civil Case No. 21239 pending before
the Regional Trial Court of Cebu City, Branch 9."11
Petitioner, in her Comment to the Motion for Reconsideration, does not
dispute that the RTC, Cebu City, Branch 9 had issued the subject
decision against her in Civil Case No. 21239. Instead, she claims that
the decision did not attain finality for the intervenors in Civil Case No.
21239 "were not furnished copy (sic) of the decision."12 This claim
cannot be accepted at face value, especially since an entry of
judgment, recording the Decision as final and executory, was issued by
the RTC, Cebu City, Branch 9 on 26 June 2003.13 Petitioner does not
allege that the intervenors who purportedly did not receive any copy of
the judgment have availed of any legal remedies as a result, and she
cannot assert such failure to acquit herself of any liability arising from
that judgment.
Hence, there is no doubt that a final judgment has been rendered
canceling petitioner's titles over the road lots. It likewise appears that
this decision has been executed. Attached to the Motion for
Reconsideration are certified true copies of three (3) Transfer
Certificates of Title, each dated 24 June 2003, covering the three (3)
road lots which are now registered in the name of Hidden View
Subdivision Homeowners Association, Inc.14 It is also stated in each of
these titles that the previous titles in the name of petitioner (T-117437,
T-117563, and T-117564) have accordingly been cancelled by these
new titles.
Following the Court's Decision, petitioner's right to the road lots as well
as her right-of-way by virtue of her titles thereto, had ceased as a
result of the decision rendered by the RTC, Cebu City, Branch 9.
Notably, even the petition itself conceded that "until and unless the
certificate of title covering these three road lots shall have been
decreed to be null and void in a direct proceedings instituted for that
purpose, the same shall be respected and in case of violation of its use
and enjoyment, the registered owner thereof, is entitled to the
protection of law."15Consequently, the Writ of Injunction confirmed by
this Court had since become functus officio, the legal basis thereof
having been expired by reason of the 2003 RTC Cebu City Decision.
The Court still maintains that the Court of Appeals erred in failing to
accord due recognition to petitioner's rights as the registered owner of
the road lots, still extant at the time it rendered its Decision. Yet
considering that petitioner's titles over the road lots have since been
nullified in a final and executory judgment which has in fact been
executed, there is no longer any basis in law to entitle petitioner to the
sought injunctive relief, or for the Court to confirm that such right of
relief still exists.
WHEREFORE, in view of the Decision of the RTC, Cebu City, Branch
9, dated 22 April 2003, in Civil Case No. 21239, the writ of preliminary
injunction issued by the RTC, Cebu City, Branch 58 made permanent
by the Decision of this Court dated 31 January 2005 is hereby
declared FUNCTUS OFFICIO.
SO ORDERED.
 Republic of the Philippines 3. The notices of auction sale in extrajudicial foreclosure for
SUPREME COURT publication by the sheriff or by a notary public shall be
Manila published in a newspaper of general circulation pursuant to
Section 1, Presidential Decree No. 1709, dated January 26,
1977, and non-compliance therewith shall constitute a
EN BANC
violation of Section 6 thereof.

A.M. No. 99-10-05-0 December 14, 1999

(Amended by A.M. 99-10-05-0, August 7, 2001)
PROCEDURE IN EXTRA-JUDICIAL FORECLOSURE OF
MORTGAGE
4. The Executive Judge shall, with the assistance of the
Clerk of Court, raffle application for extrajudicial foreclosure
of mortgage under the direction of the sheriff among all
sheriffs, including those assigned to the Office of the Clerk of
Court and Sheriffs IV assigned in the branches.

In line with the responsibility of an Executive Judge under
Administrative Order No. 6, dated June 30, 1975, for the management
of courts within his administrative area, included in which is the task of
supervising directly the work of the Clerk of Court, who is also the Ex
Officio Sheriff, and his staff, and the issuance of commissions to
notaries public and enforcement of their duties under the law, the
following procedures are hereby prescribed in extrajudicial foreclosure
of mortgages:
1. All applications for extra-judicial foreclosure of mortgage
whether under the direction of the sheriff or a notary public,
pursuant to Act 3135, as amended by Act 4118, and Act
1508, as amended, shall be filed with the Executive Judge,
through the Clerk of Court who is also the Ex-Officio Sheriff.
2. Upon receipt of an application for extra-judicial foreclosure
of mortgage, it shall be the duty of the Clerk of Court to:
a) receive and docket said application and to
stamp thereon the corresponding file number, date
and time of filing;
b) collect the filing fees therefor and issue the
corresponding official receipt;
5. No auction sale shall be held unless there are at least two
(2) participating bidders, otherwise the sale shall be
postponed to another date. If on the new date set for the
sale there shall not be at least two bidders, the sale shall
then proceed. The names of the bidders shall be reported by
the sheriff or the notary public who conducted the sale to the
Clerk of Court before the issuance of the certificate of sale.
This Resolution amends or modifies accordingly Administrative Order
No. 3 issued by then Chief Justice Enrique M. Fernando on 19 October
1984 and Administrative Circular No. 3-98 issued by the Chief Justice
Andres R. Narvasa on 5 February 1998.
The Court Administrator may issue the necessary guidelines for the
effective enforcement of this Resolution.
The Clerk of Court shall cause the publication of this Resolution in a
newspaper of general circulation not later than 27 December 1999 and
furnish copies thereof to the Integrated Bar of the Philippines.
This Resolution shall take effect on the fifteenth day of January year
2000.
Enacted this 14th day of December 1999 in the City of Manila.

c) examine, in case of real estate mortgage

Davide, Jr., C.J., Bellosillo, Mendoza, Quisumbing, Melo, Vitug,
foreclosure, whether the applicant has complied
Panganiban, Purisima, Puno, Kapunan, Pardo, Buena, Ynares-
with all the requirements before the public auction
Santiago, Gonzaga-Reyes and De Leon, Jr., JJ.
is conducted under the direction of the sheriff or a
notary public, pursuant to Sec. 4 of Act 3135, as
amended;

d) sign and issue the certificate of sale, subject to

the approval of the Executive Judge, or in his
absence, the Vice-Executive Judge; and

e) after the certificate of sale has been issued to

the highest bidder, keep the complete records,
while awaiting any redemption within a period of
one (1) year from date of registration of the
certificate of sale with the Register of Deeds
concerned, after which the records shall be
archived.

Where the application concerns the extrajudicial foreclosure

of mortgages of real estates and/or chattels in different
locations covering one indebtedness, only one filing fee
corresponding to such indebtedness shall be collected. The
collecting Clerk of Court shall, apart from the official receipt
of the fees, issue a certificate of payment indicating the
amount of indebtedness, the filing fees collected, the
mortgages sought to be foreclosed, the real estates and/or
chattels mortgaged and their respective locations, which
certificate shall serve the purpose of having the application
docketed with the Clerks of Court of the places where other
properties are located and of allowing the extrajudicial
foreclosures to proceed thereat.
 THIRD DIVISION
SPOUSES ISAGANI and DIOSDADA CASTRO, G.R. No. 190122
Petitioners,
Present:
- versus -
CARPIO MORALES, J., Chairperson,
BRION,
SPOUSES REGINO SE and VIOLETA DELA CRUZ, BERSAMIN,
SPOUSES EDUARDO and CHARITO PEREZ and VILLARAMA, JR., and
MARCELINO TOLENTINO, SERENO, JJ.
Respondents.
Promulgated:
January 10, 2011
x-------------------------------------------------
-x
DECISION
CARPIO MORALES, J.,
For the Courts consideration is the propriety of the issuance of a writ of
preliminary mandatoryinjunction in favor of respondent Spouses Regino
Se and Violeta dela Cruz (Spouses dela Cruz).
Respondent Spouses Eduardo and Charito Perez (Spouses Perez)
obtained a P250,000 loan from Spouses Isagani and Diosdada Castro
(petitioners) on November 15, 1996, to secure which they executed a
real estate mortgage in petitioners favor covering an unregistered 417
square meter parcel of land, located in San Isidro, Hagonoy, Bulacan,
covered by Tax Declaration (TD) No. 01844 (the property).
Respondent Spouses Perez having failed to settle their loan, petitioners
extrajudicially foreclosed the mortgage and, as the highest bidder at the
public auction, bought the property on February 4, 1999. It turned out
that before the foreclosure or sometime in 1997 respondent Spouses
Perez, contrary to a provision of the real estate mortgage, sold the
property to respondent Spouses dela Cruz who had in fact caused the
cancellation of TD No. 01844 by TD No. 01892 in their name on August
15, 1997.
Petitioners thus filed on April 8, 1999 a complaint against
herein two sets of respondent Spouses, for annulment of Deed of Sale
and TD No. 01892[1] and damages before the Malolos Regional Trial
Court (RTC). Respondent Marcelino Tolentino, Municipal Assessor of
Hagonoy, Bulacan was impleaded as defendant. The complaint was
raffled to Branch 7 of the RTC.
By respondent Spouses dela Cruzs allegation, before buying
the property, they inspected it and found no improvements thereon that
would put them on guard against the integrity of the TD of the sellers-
Spouses Perez which TD, contrary to petitioners claim, bore no
annotation of the mortgage. They had in fact constructed a house on the
property in the course of which they were approached by petitioners who
informed them of an existing mortgage thereover, but as petitioners did
not present any document to prove it, they paid no heed to the
information.
During the pendency of petitioners complaint against respondents
spouses, petitioners filed an ex-parte motion before Branch 16 of the
RTC for the issuance of a writ of possession over the property by virtue
of the foreclosure of the mortgage of the sale to them of the
property. [2]Petitioners motion was granted and a writ of possession
dated August 2, 2001 was issued and enforced against respondent
Spouses dela Cruz who were evicted from the property.
On December 7, 2002, petitioners amended, with leave of court, their
complaint, alleging that, inter alia, respondent Spouses Perez failed to
redeem the mortgage within the reglementary period.
In their Answer to the Amended Complaint, respondent
Spouses dela Cruz prayed for the issuance of a writ of
preliminary mandatory injunction to restore them to physical possession
of the property, which prayer Branch 7 of the RTC granted by Order of
October 29, 2004 in this wise:
. . . It is not disputed that the Sps. Isagani Castro
and Diosdada Castro, herein plaintiffs, were placed
in possession of the subject property by virtue of a
writ of possession issued by Branch 16 of the Court.
This writ of possession commanded the sheriff to
require the spouses Eduardo Perez and Charito
Lopez and all persons claiming rights under them to
vacate subject property and surrender possession
thereof to spouses Castro. At that time, the
Spouses Regino Se and Violeta dela Cruz were in
possession of the property as owners thereof,
having already purchased the same from the Sps.
Castro. Their evidence of ownership is Tax
Declaration No. 01892 of the Office of the Municipal
Assessor of Hagonoy, Bulacan, the property being
still an unregistered property. They were not
claiming rights under the spouses Perez. They
were and still are the owners in their own right.
Hence, the writ of possession issued was
improperly implemented and under Art. 539 of the
Civil Code, they must be restored to said
possession by the means established by the laws
and the Rules of Court. The writ of preliminary
mandatory injunction prayed for is undeniably one
of the means established by the laws and the Rules
of Court. [3] (underscoring supplied)
Petitioners motion for reconsideration of the trial courts Order
of October 29, 2004 was denied by Order of March 5, 2007, hence, they
filed a petition for certiorari before the Court of Appeals. Finding no
grave abuse of discretion in the issuance of the Order, the appellate
court denied petitioners petition, by Decision of September 14, 2009.[4]
Hence, the present petition.
The trial court anchored its assailed Order granting the writ of
preliminary mandatory injunction on Article 539 of the Civil Code. The
Article reads:
Art. 539. Every possessor has a right to
be respected in his possession; and should he be
disturbed therein, he shall be protected in or
restored to said possession by the means
established by the laws and the Rules of Court.
xxxx
Undoubtedly, respondent Spouses dela Cruz actually took possession
of the property before the real estate mortgage covering it was
foreclosed, and had in fact cancelled the TD in Spouses Perez name
and had one issued in their name. It appears, however, that petitioners
did not inform Branch 16, RTC of the previous sale of the property
to third parties, herein respondent Spouses dela Cruz, and the latters
actual possession thereof.
For an injunctive writ to issue, a clear showing of extreme
urgency to prevent irreparable injury and a clear and unmistakable right
to it must be proven by the party seeking it. The primary objective of a
preliminary injunction, whether prohibitory or mandatory, is to preserve
the status quo until the merits of the case can be heard.[5]
[T]he rule is well-entrenched that the issuance of
the writ of preliminary injunction rests upon the
sound discretion of the trial court. It bears
reiterating that Section 4 of Rule 58 gives generous
latitude to the trial courts in this regard for the
reason that conflicting claims in an
application for a provisional writ more often than
not involve a factual
determination which is not the function of appellate
courts. Hence, the exercise of sound judicial
discretion by the trial court in injunctive matters
 must not be interfered with except when there
is manifest abuse, which is wanting in the present
case.[6] (emphasis and underscoring supplied)

Indeed, the rule is well-entrenched that for grave abuse of

discretion to exist as a valid ground for the nullification of an injunctive
writ, there must be a capricious and whimsical exercise of judgment,
equivalent to lack or excess of jurisdiction. Or the power must be
exercised in an arbitrary manner by reason of passion or personal
hostility, and it must be patent and gross as to amount to an evasion of
a positive duty or a virtual refusal to perform a duty enjoined by law. [7]

Recall that respondent Spouses dela Cruz had

long before the foreclosure of the mortgage or sometime in 1997 bought
and took possession of the property, and had in fact cancelled the seller-
respondent Spouses Perez TD and had one issued in their name. By
petitioners seeking ex parte the issuance to them on February 1999 of
a writ of possession over the property, which was granted and the writ
enforced against respondent Spouses de la Cruz, they disturbed
the status quo ante litem. The trial court did not thus commit grave
abuse of discretion when it issued the writ of
preliminary mandatory injunction in favor of Spouses de la Cruz.

For the enforcement of the writ of possession against

respondent Spouses dela Cruz, who did not take part in the foreclosure
proceedings, would amount to taking of real property without the benefit
of a proper judicial intervention. The procedural shortcut which
petitioners is impermissible. Even Article 433 of the Civil Code instructs
that Actual possession under claim of ownership raises disputable
presumption of ownership. The true owner must resort to judicial
process for the recovery of the property. The contemplated judicial
process is not through an ex-parte petition as what petitioners availed
of, but a process wherein a third party, Spouses de la Cruz herein, is
given an opportunity to be heard.[8]

The jurisdictional foundation for the issuance of a writ of

injunction rests not only in the existence of a cause of action and in the
probability of irreparable injury, among other considerations, but also in
the prevention of multiplicity of suits.

Since petitioners failed to show that the appellate court erred

in upholding the trial courts exercise of its discretion in issuing the writ
of preliminary mandatory injunction, the challenged Decision stands.

Parenthetically, the issuance of the challenged writ does not

render petitioners case closed. Whether there existed a conspiracy
between both sets of respondent spouses to defraud petitioners can be
only be determined after the principal action is tried on the merits during
which the parties are afforded the opportunity to present evidence in
support of their respective claims.[9]

WHEREFORE, the petition is DENIED.

SO ORDERED.