THIRD DIVISION [G.R. No. 143173. March 28, 2001] SPS.

PEDRO ONG AND VERONICA ONG, petitioners, vs. SOCORRO PAREL AND HON. COURT OF APPEALS,Respondents. DECISION GONZAGA-REYES, J.: The instant petition for review on certiorari seeks the annulment of the decision of the respondent Court of Appeals[1 dated December 14, 1999 affirming the decision of the Regional Trial Court which reversed and set aside the judgment of the Metropolitan Trial Court of Manila, Branch 15, for forcible entry, as well as the resolution dated May 4, 2000 denying petitioners motion for reconsideration. [2 Spouses Pedro and Veronica Ong are the registered owners of Lot No.18, Block 2 of the subdivision plan II of Rizal Park subdivision, situated in Sta Cruz, Manila covered by TCT No. 218597, having purchased the property from the spouses Emilio Magbag and Norma B. Pascual in 1994. Adjacent to Lot No. 18 is Lot No.17 consisting of about 109 sq. meters covered by TCT No. 125063 registered under the name of Visitacion Beltran, grandmother of respondent Socorro Parel. On May 25, 1995, the Ong spouses filed an action for forcible entry against defendant Parel before the Metropolitan Trial Court of Manila, Branch 15, docketed as Civil Case No. 148332, alleging among other things that defendant Parel through strategy and stealth constructed an overhang and hollow block wall along the common boundary of the parties adjoining lot, i.e., beyond Lot No. 17 owned by Parel and inside Lot No.18 owned by plaintiffs spouses Ong, thereby illegally depriving plaintiffs of possession of the said portion of their lot; that plaintiffs discovered respondents illegal possession of their lot on August 23, 1994 when they had the boundaries of their lot resurveyed; that plaintiffs made various demands from the defendants to remove the constructions they introduced in the said lot of the plaintiffs and vacate the same, the last of which demands having been made on December 19, 1994. Defendant Parel denied the material allegations of the complaint and alleged that the overhang and hollow block wall had already been in

existence since 1956 and that these structures are within the boundary of lot 17 owned by him. The parties moved for an ocular inspection of the subject lot which was granted by the trial court. The trial court designated the Branch Clerk of Court as Commissioner while defendant Parel employed the services of Geodetic Engr. Mariano V. Flotildes who made the relocation survey on November 28, 1995 in the presence of both parties. Thereafter, the Commissioner reported that defendants wall protrudes 1 meters into plaintiffs property and a window sill overhangs by about meter deep into plaintiffs premises and the eaves of the main residential building extends into the plaintiffs premises. The Geodetic Engineers Report, confirmed that the house of the defendant encroached plaintiffs property by an area of 2.7 sq. m., and the adobe and hollow block wall by an area of 1.59 sq. m., respectively, resulting to a total encroachment of 4.29 sq. m., more or less into the plaintiffs property. On April 12, 1996, the Metropolitan Trial Court rendered judgment in favor of the plaintiffs spouses Ong; the dispositive portion reads: [3 WHEREFORE, premises considered, judgment is hereby rendered in favor of plaintiffs and against the defendants ordering: (a) the defendants and all persons claiming rights under her to remove the overhang constructions measuring 2.70 sq. m. and the adobe block wall measuring 1.59 sq.m. respectively on lot 18 of the plaintiffs and to peacefully surrender its possession to the plaintiffs; (b) ordering the defendants to pay the plaintiffs the sum of Ten Thousand Pesos (P10,000.00) as and by way of attorneys fees; plus the costs of suit. SO ORDERED. Respondent Parel filed an appeal with the Regional Trial Court, docketed as Civil Case No. 96-78666. On October 3, 1996, the regional trial court [4 dismissed the case for failure of the Ong spouses to prove prior physical possession of the subject lot, the dispositive portion reads: [5 WHEREFORE, premises considered, the decision appealed from is hereby REVERSED and SET ASIDE. This case is hereby DISMISSED, without prejudice to the filing of the appropriate actions, without costs. SO ORDERED.

Spouses Ong moved for a reconsideration which was also denied in a resolution dated August 1, 1997. [6 Aggrieved by the above decision, petitioners spouses Ong elevated the matter to the Court of Appeals by way of a petition for review. The respondent Court of Appeals in a decision dated December 14, 1999 denied the petition. The appellate court adopted the lower courts findings that the alleged encroachments were made by the late Visitacion Beltran at a time when she still owned both lots or when she had all the right and the power to introduce the improvements; thus the introduction of the said construction could not be equated with strategy and stealth giving rise to forcible entry. It added that what is involved in a forcible entry case is merely the issue of material possession or possession de facto which the petitioner miserably proved in their favor. It further pointed out that it was admitted by the petitioners in their petition that this case involves a boundary dispute and not lot 18 in its entirety, and the encroachment was discovered only upon a relocation survey of the property; such controversy could not be threshed out in an ejectment suit in view of the summary nature of the action, and the MTC, accordingly, is without jurisdiction to entertain the same. Petitioners moved for a reconsideration which was also denied in a resolution dated May 4, 2000. Hence, this petition. Petitioners assign the following issues for consideration: [7 1. WHETHER OR NOT GAINING ENTRY WITHOUT THE KNOWLEDGE OR CONSENT OF THE OWNER OR REMAINING RESIDENT OF ANOTHER WITHOUT PERMISSION IS DISPOSSESSION BY STEALTH; 2. WHETHER OR NOT ENTRY SECURED BY STRATEGY OR STEALTH BECOMES UNLAWFUL AND DE FACTO POSSESSION COMMENCES ONLY UPON DEMAND; 3. WHETHER OR NOT THERE IS A DISTINCTION BETWEEN FORCIBLE ENTRY BY MEANS OF STEALTH AND FORCIBLE ENTRY BY MEANS OF FORCE, INTIMIDATION OR THREAT; 4. WHETHER OR NOT PETITIONER CAN INVOKE SUPREME COURT RULINGS IN UNLAWFUL DETAINER CASES; 5. WHETHER OR NOT THE PRIVATE RESPONDENT IS THE AUTHORIZED PARTY IN THE CASE OF CO-OWNERSHIP AS OBTAINED IN THIS CASE;

6. WHETHER OR NOT THE CHARACTER OF THE POSSESSION ACQUIRED IN BAD FAITH WAS INHERITED BY THE PRIVATE RESPONDENT AND DID NOT CHANGE; 7. WHETHER OR NOT THE DECISION OF THE RESPONDENT COURT OF APPEALS IS BASED ON SPECULATION SURMISE OR CONJECTURE OR MISAPPREHENSION OF FACTS. Petitioners essentially allege that the act of entering and trespassing upon a parcel of land, or of constructing improvements upon a parcel of land without the knowledge or permission of the person who owns or administers it is an act of dispossession and usurpation of real property by means of strategy or stealth; that private respondent is a usurper or encroacher who constructed a portion of her house and adobe and hollow block wall on the land of the petitioners with no bona fide claim and without the consent of the owner. The petition has no merit. Section 1, Rule 70 of the Rules of Court requires that in actions for forcible entry the plaintiff is allegedly deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth and that the action is filed any time within one year from the time of such unlawful deprivation of possession. This requirement implies that in such cases, the possession of the land by the defendant is unlawful from the beginning as he acquires possession thereof by unlawful means. The plaintiff must allege and prove that he was in prior physical possession of the property in litigation until he was deprived thereof by the defendant. The one year period within which to bring an action for forcible entry is generally counted from the date of actual entry on the land, [8 except that when entry was made through stealth, the one year period is counted from the time the plaintiff learned thereof. [9 If the alleged dispossession did not occur by any of the means stated in section 1, Rule 70, the proper recourse is to file a plenary action to recover possession with the regional trial court. [10 In their complaint, petitioners Ong spouses aver that through stealth and strategy respondent constructed the controversial overhang and hollow block wall along the common boundary of the parties adjoining lots which encroached on petitioners Lot No. 18. Stealth is defined as any secret, sly, or clandestine act to avoid discovery and to gain entrance into or remain within residence of another without permission. [11 However, petitioners failed to establish that respondents encroached upon their property through stealth as it was

not shown when and how the alleged entry was made on the portion of their lot. On the other hand, respondents claim that the said structures were already existing on the lot at the time petitioners brought the same from the Magbag spouses in 1994, was sustained by the lower court since petitioners admitted in their petition that they discovered such encroachment only after a relocation survey on their lot on August 23, 1994. We find no reason to disturb the respondent courts factual conclusion that the alleged encroachments were made by the late Visitacion Beltran at a time when she still owned both lots nos. 17 and 18 or when she had all the right and power to do so. Private respondent in her affidavit submitted before the court had affirmed that her grandmother, Visitacion Beltran, was the registered owner of the parcel of land covered by TCT No. 125163 (Lot No. 17) with improvements which include the window sill overhang and the old adobe wall which were constructed as early as 1956 and these improvements are adjacent to the private alley from Elias Street which has to be opened and maintained as long as there exists building thereon; that the maintenance of such alley was made as an encumbrance in petitioners title (TCT No. 218597) when they bought the adjacent Lot no. 18. Petitioners failed to present evidence to the contrary. It becomes clear that this is not a proper case for forcible entry wherein one party unlawfully deprives another of possession of the property subject of the litigation; it is a boundary dispute wherein the adobe wall, overhang and window grill on the respondents side of the property encroach a total of 4.29 meters, more or less, upon the petitioners side of the property. We affirm with approval of the observations of the Regional Trial Court, in this wise: Let it be emphasized that the matter subject of the present action is that portion only of Lot No. 18 allegedly encroached by the defendantappellant and not Lot 18 in its entirety. While there was a finding of encroachment on Lot No. 18 as per the Commissioners Report and Engineers Report dated December 27, 1995 and December 29, 1995, respectively, plaintiff-appellees failed to recount the circumstances as to how and when defendant-appellant allegedly forcibly entered Lot No. 18. Neither was there any evidence ever proffered by them to prove that defendant-appellant made or at least ordered the introduction of the said improvements or construction. According to them, the Magbag spouses gave them the

right to administer, occupy and to have physical possession in the concept of an owner, Lot No. 18 on June 17, 1994 until the title to the said lot was transferred to their names on October 28, 1994 and they have just discovered the encroachment on Lot No. 18 only on August 23, 1994 when they had the boundaries of Lots Nos. 17 and 18 resurveyed. Defendant-appellant, on the other hand, averred that the questioned improvements and constructions encroaching on Lot No. 18 were already there since 1956, and this averment was not controverted by the plaintiff-appellees at all. Thus, the truth is that, when defendant-appellant acquired Lot No. 18, the adobe wall, overhang and window grill were already there encroaching on Lot No. 18 as it was the late Salvacion (sic)[12 Beltran who built the same. In fact, even up to the present, defendant-appellant is still in possession of the herein questioned premises which means that plaintiff-appellees were never in possession of the same. The latter, therefore, cannot be said to be in prior physical possession. The demand made on the defendant-appellant is here of no moment as it is a well-entrenched jurisprudence that demand to vacate is not necessary in forcible entry cases (Menez vs. Militante, 41 Phil. 44). Consequently, for failure of the plaintiff-appellees to circumstantiate prior physical possession on the herein subject premises and the fact of entry on the same by the defendant-appellant by force, intimidation, violence or stealth, the present action for forcible entry must exigently fail. Moreover, this Court notes that at the time the improvements were made, the late Salvacion (sic) Beltran was still the registered owner of both Lots Nos. 17 and 18. Thus while it may be true that defendant-appellant is now the administrator of Lot No. 17, defendant-appellant cannot be made to answer for the encroachments on Lot No. 18 for the same were done by the late Salvacion (sic) Beltran who had all the right and power to introduce the improvements as she was then the registered owner of both Lots Nos. 17 and 18 at the time the same were made. While plaintiff-appellees can recover possession of the herein questioned premises, they cannot do so in the guise of an action for forcible entry. For where the complaint fails to specifically aver facts constitutive of forcible entry or unlawful detainer, as where it does not state how entry was effected or how and when dispossession started, the action should either be ACCION PUBLICIANA or ACCION REINVINDICATORIA for which the lower court has no jurisdiction (See Sarona, et al. vs. Villegas, et al., March 27, 1968, Banayos vs. Susana Realty, Inc. L-30336, June 30, 1976). In view of the failure of the petitioners to allege, much less prove, with specificity that the respondents unlawfully entered their portion of the

lot either by force, intimidation, threat, strategy, or stealth this action for forcible entry must necessarily fall. We declared in the case of Sarmiento vs. Court of Appeals: [13 The jurisdictional facts must appear on the face of the complaint. When the complaint fails to aver facts constitutive of forcible entry or unlawful detainer, as where it does not state how entry was effected or how and when dispossession started, as in the case at bar, the remedy should either be an accion publiciana or an accion reivindicatoria in the proper regional trial court. If private respondent is indeed the owner of the premises subject of this suit and she was unlawfully deprived of the real right of possession or the ownership thereof, she should present her claim before the regional trial court in anaccion publiciana or an accion reivindicatoria, and not before the municipal trial court in a summary proceeding of unlawful detainer or forcible entry. For even if one is the owner of the property, the possession thereof cannot be wrested from another who had been in the physical or material possession of the same for more than one year by resorting to a summary action for ejectment. This is especially true where his possession thereof was not obtained through the means or held under the circumstances contemplated by the rules on summary ejectment. We have held that in giving recognition to the action for forcible entry and unlawful detainer, the purpose of the law is to protect the person who in fact has actual possession, and in case of a controverted proprietary right, the law requires the parties to preserve the status quo until one or the other sees fit to invoke the decision of a court of competent jurisdiction upon the question of ownership." Petitioners contention that although they denominated their complaint as one for forcible entry based on the ground of stealth, the allegations in the body of the complaint sufficiently established a cause of action for unlawful detainer, does not persuade us. In unlawful detainer, one unlawfully withholds possession thereof after the expiration or termination of his right to hold possession under any contract, express or implied. In the instant case, the complaint does not allege that the possession of respondent ever changed from illegal to legal anytime from their alleged illegal entry before plaintiffs made the demand to vacate. There was no averment in the complaint which recites as a fact any overt act on the part of the petitioners which showed that they permitted or tolerated respondent to occupy a portion of their property.

After a finding that the petitioners failed to make a case for ejectment, we find it unnecessary to dwell on the other assignments of error. WHEREFORE , the petition is DENIED and the assailed decision of respondent Court of Appeals is hereby AFFIRMED. SO ORDERED.

EN BANC G.R. No. L-22984 March 27, 1968

MARGARITO SARONA, ET AL., plaintiffs-appellants, -versusFELIPE VILLEGAS and RAMONA CARILLO, defendants-appellees. Aportadera & Palabrica for plaintiffs-appellants. Castillo Law Offices for defendants-appellees. SANCHEZ, J.: The key question thrust upon us is whether the present is a case of forcible entry or one of unlawful detainer. The problem arose because on January 28, 1963, plaintiffs lodged with the Municipal Court of Padada, Davao, against defendants as complaint, styled "Unlawful Detainer." 1 They there aver that they are the absolute owners and in possession of a parcel of land in Paligue, Padada. Their complaint then proceeds to recite: 3. That on April 1, 1958, defendants entered upon said land Lot "F" constructed their residential house thereon and up to date remain in possession

thereof, unlawfully withholding the possession of the same from the plaintiffs; 4. That the reasonable rental for said Lot is P20.00 per month; 5. That on December 28, 1962, plaintiffs demanded of defendants to vacate the premises and to pay the rentals in arrears but then defendants failed to do so; that defendants' possession thus became clearly unlawful after said demand; xxx xxx xxx

They asked that they be restored into possession, and that defendants be made to pay rents, attorneys' fees, expenses of litigation, and costs. Defendants met the complaint with a motion to dismiss on the sole ground of lack of jurisdiction of the municipal court. They say that the case is one of forcible entry, and the reglementary one-year period had elapsed before suit was started. The municipal court overturned the motion to dismiss. On May 15, 1963, defendants registered their answer. They reiterated the court's lack of jurisdiction, and by way of affirmative defenses, stated that plaintiffs have no cause of action, and that "the present residential house of the defendants was transferred to the present site after plaintiffs sold to defendants a portion of their land, which includes

the site of the present house and from and after said sale, defendants have occupied the said portion legally and with the knowledge and consent of plaintiffs." They counterclaimed for damages. The municipal court's judgment directed defendants to vacate the premises, to pay plaintiffs a monthly rental of P10.00, from April 1, 1958 until possession is restored, and P200.00 as attorneys' fees, and costs. Defendants, on appeal to the court of First Instance of Davao, 2 renewed their bid to throw out of court plaintiffs' complaint for want of jurisdiction. Plaintiffs' opposition and defendants' reply thereto were also submitted. On December 26, 1963, the Court of First Instance of Davao dismissed the case. The court reasoned but that the suit was one of forcible entry and was started beyond the reglementary one-year period. Plaintiffs appealed to this Court. Plaintiffs' position is that the municipal court had original jurisdiction; that consequently the Court of First Instance had appellate jurisdiction. Their theory is that suit was well within the one-year period. They say that the parting date is December 28, 1962, when plaintiffs demanded of defendants to vacate the premises and pay rentals in arrears; and that the complaint was registered in court on January 28, 1963.

Solution of the problem turns on this question: Is the complaint one of forcible entry or unlawful detainer? 1. Section 1, Rule 70 (formerly Section 10, Rule 72) of the Revised Rules of Court, states that a person deprived of possession of land "by force, intimidation, threat, strategy, or stealth," or a person against whom the possession of any land "is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied," may at any time "within one (1) year after such unlawful deprivation or withholding of possession, bring an action in the proper inferior court against the person or persons unlawfully withholding or depriving of possession." The next legal precept, Section 2 of the same Rule, provides that the landlord may not sue his tenant for ejectment "for failure to pay rent due or to comply with the conditions of his lease, unless the tenant shall have failed to pay such rent or comply with such conditions for a period of fifteen (15) days, or five (5) days in the case of building, after demand therefor, . . . ." It is plain that the foregoing rules define two entirely distinct causes of action, to wit: (a) action to recover possession founded on illegal occupation from the beginning forcible entry; and (b) action founded on unlawful detention by a person who originally acquired possession lawfully unlawful detainer. 3 The law and jurisprudence leave no doubt in our mind that what determines the cause of action is the nature of defendants' entry into the land. If entry is illegal, then the

cause of action which may be filed against the intruder within one year therefrom is forcible entry. If, on the other hand, entry is legal but thereafter possession became illegal, the case is one of illegal detainer which must be filed within one year from the date of the last demand. 2. We observe a lack of precision-tooling in the complaint. Defendants' alleged entry into the land is not characterized whether legal or illegal. It does not say how defendants entered the land and constructed their residential house thereon. It is silent, too, whether possession became legal before plaintiffs made the demand to vacate and to pay rentals. Nor does the complaint as much as intimate that defendants are plaintiffs' tenants. So that the case would not come within the coverage of Section 2 of Rule 70 (summary action by landlord against tenant). Failure to specifically aver in the complaint facts which definitely show that plaintiffs' action is for forcible entry or unlawful detainer, is not to be lightly treated. Jurisdiction here challenged in a motion to dismiss depends upon, factual averments. The jurisdictional facts must appear on the face of the complaint. Where, as here, the only definite ultimate facts averred are that on April 1, 1958, defendants entered upon the land and constructed their residential house thereon, remained in possession thereof, and that demand to vacate and pay rentals only was made on December 28, 1962, well beyond the one-year period, the municipal court of Padada did not have jurisdiction.

The want of jurisdiction is the more accentuated when we consider the facts that surfaced during the trial as found by the municipal court, viz: In the course of the hearing of this case it is clear that, according to the plaintiff, Margarito Sarona, the defendants transferred their house on April 1, 1958 to the litigated area which is designated as Lot F, (Exhibit "C-1") without their consent and permission. At that time he was just living 200 meters away from the lot. He requested the defendants not to place the said house in the litigated area but the defendants refused. He did nothing and only on December 28, 1962, when the formal letter of demand to vacate and to pay rental was made by the plaintiff through their lawyer, Atty. Palabrica, and addressed the said letter to the defendants but the defendants refused to vacate the area and to pay a rental of P20.00. . . . It is then too plain for argument that defendants entered the land on April 1, 1958 without plaintiffs' consent and permission; that plaintiff Margarito Sarona "requested the defendants not to place the said house in the litigated area but the defendants refused." The findings of the municipal court itself may not be downgraded in the present case. And this, for the reason that the complaint did not specifically state the manner of entry of defendants into the land legal or illegal. Since the parties went to trial on the merits, and it came to light that defendants' entry was illegal at the inception, the municipal court should have dismissed the case. That court

cannot close its eyes to the truth revealed by plaintiffs' own evidence before it. A court of limited jurisdiction, said municipal court, should not have proceeded to render an on-the-merits judgment thereon. 4 Clearly, plaintiffs' case fits in the jurisprudential precept of forcible entry. Because the entry is forcible. Long had it been made evident that in forcible entry cases, no force is really necessary In order to constitute the use of "force," as contemplated in this provision, the trespasser does not have to institute a state of war. Nor is it even necessary that he should use violence against the person of the party in possession. The act of going on the property and excluding the lawful possessor therefrom necessarily implies the exertion of force over the property, and this is all that is necessary. Under the statute entering upon the premises by strategy or stealth is equally an obnoxious as entering by force. The foundation of the action is really the forcible exclusion of the original possessor by a person who has entered without right. The words "by force, intimidation, threat, strategy or stealth" include every situation or condition under which one person can wrongfully enter upon real property and exclude another, who has had prior possession, therefrom. If a trespasser enters upon land in open daylight, under the very eyes of the person already clothed with lawful possession, but without the consent of the latter, and there plants himself and excludes such prior possessor

from the property, the action of forcible entry and detainer can unquestionably be maintained, even though no force is used by the trespasser other than such as is necessarily implied from the mere acts of planting himself on the ground and excluding the other party. 5 3. But plaintiffs would want to make out a case of illegal detainer upon their belated claim that they tolerated defendants' possession. To be observed on this point is that there has been no allegation in the complaint, and no showing during the trial in the municipal court, that possession of defendants ever changed from illegal to legal any time from their illegal entry to the demand to vacate. No averment there is in the complaint which recites as a fact any overt act on plaintiffs' part indicative of permission to occupy the land. Without resorting to mindreading, we are hard put to conclude that there was such a change from illegal to legal possession of defendants until the demand to vacate was made. But even where possession preceding the suit is by tolerance of the owner, still, distinction should be made. If right at the incipiency defendants' possession was with plaintiffs' tolerance, we do not doubt that the latter may require him to vacate the premises and sue before the inferior court under Section 1 of Rule 70, within one year from the date of the demand to vacate. Because, from the date of demand, possession became unlawful. And the case is illegal detainer. 6

But will this rule as to tolerance hold true in a case where there was forcible entry at the start, but the lawful possessor did not attempt to oust the intruder for over one year, and only thereafter filed forcible entry suit following demand to vacate? Professor Arturo M. Tolentino states that acts merely tolerated are "those which by reason of neighborliness or familiarity, the owner of property allows his neighbor or another person to do on the property; they are generally those particular services or benefits which one's property can give to another without material injury or prejudice to the owner, who permits them out of friendship or courtesy." 7 He adds that: "[t]hey are acts of little disturbances which a person, in the interest of neighborliness or friendly relations, permits others to do on his property, such as passing over the land, tying a horse therein, or getting some water from a well." And, Tolentino continues, even though "this is continued for a long time, no right will be acquired by prescription." 8 Further expounding on the concept, Tolentino writes: "There is tacit consent of the possessor to the acts which are merely tolerated. Thus, not every case of knowledge and silence on the part of the possessor can be considered mere tolerance. By virtue of tolerance that is considered as an authorization, permission or license, acts of possession are realized or performed. The question reduces itself to the existence or non-existence of the permission." 9 A close assessment of the law and the concept of the word "tolerance" confirms our view heretofore expressed

that such tolerance must be present right from the start of possession sought to be recovered, to categorize a cause of action as one of unlawful detainer not of forcible entry. Indeed, to hold otherwise would espouse a dangerous doctrine. And for two reasons: First. Forcible entry into the land is an open challenge to the right of the possessor. Violation of that right authorizes the speedy redress in the inferior court provided for in the rules. If one year from the forcible entry is allowed to lapse before suit is filed, then the remedy ceases to be speedy; and the possessor is deemed to have waived his right to seek relief in the inferior court. Second. If a forcible entry action in the inferior court is allowed after the lapse of a number of years, then the result may well be that no action of forcible entry can really prescribe. No matter how long such defendant is in physical possession, plaintiff will merely make a demand, bring suit in the inferior court upon a plea of tolerance to prevent prescription to set in and summarily throw him out of the land. Such a conclusion is unreasonable. Especially if we bear in mind the postulates that proceedings of forcible entry and unlawful detainer are summary in nature, and that the one year time-bar to the suit is but in pursuance of the summary nature of the action. 10 It is well to remember that after the lapse of the one year period, suit must be started in the Court of First Instance in an accion publiciana. Jurisdiction in the case before us is with the Court of First Instance.

For the reasons given, the order of the Court of First Instance of Davao of December 26, 1963 dismissing the case for want of jurisdiction in the Municipal Court of Padada, is hereby affirmed. Costs against plaintiffs-appellants. So ordered.
SPOUSES ROGELIO F. LOPEZ AND TEOTIMA G. LOPEZ, Petitioners, - versus G.R. No. 184225 Present: Ynares-Santiago, J. (Chairperson), Chico-Nazario, Velasco, Jr., Nachura, and Peralta, JJ. Promulgated:

SPOUSES SAMUEL R. ESPINOSA AND ANGELITA S. ESPINOSA, Respondents.

September 4, 2009 x ---------------------------------------------------------------------------------------- x

DECISION
YNARES-SANTIAGO, J.:
Assailed in this petition[1] for review on certiorari is the March 24, 2008 Decision[2] of the Court of Appeals in CA-G.R. CV No. 00113 finding petitioners, Spouses Rogelio F. Lopez and Teotima G. Lopez, liable for forcible entry and damages as well as the August 7, 2008 Resolution[3] denying petitioners motion for reconsideration. Respondents, Spouses Samuel R. Espinosa and Angelita S. Espinosa, owned a house located at Barangay Washington,Surigao City. Constructed

in 1983, the house was situated at the back of petitioners residence and stood over a portion of a parcel of land covered by Transfer Certificate of Title No. T-12332[4], which was issued under the name of petitioners on June 28, 1996. It appears from the records that the parties have had conflicting claims over the subject property since 1994 when petitioners, together with a Mr. Nolan Kaimo, filed an action for recovery of possession against respondents. The case was docketed as Civil Case No. 4301 before Branch 2 of the Municipal Trial Court in Cities of Surigao City, but was dismissed on September 7, 1994 on technical grounds.[5] On June 9, 1997 and July 2, 1997, petitioners were also summoned by the Office of the Punong Barangay of Barangay Washington, in connection with a complaint for malicious mischief filed by respondents.[6] Meanwhile, the instant case stemmed from a complaint[7] for Forcible Entry with Damages filed by respondents against petitioners on September 30, 2002. The case was docketed as Civil Case No. 02-5950 before Branch 2 of the Municipal Trial Court in Cities of Surigao City. Respondents alleged that on May 10, 2002, petitioners took advantage of their absence and demolished their house by means of stealth and strategy. Aided by hired personnel, petitioners removed and destroyed respondents house and enclosed the property with a concrete fence. In their Answer,[8] petitioners denied having demolished respondents house and claimed that it was destroyed by the elements. They also averred

that respondents permanently transferred residence in 1999 considering that they paid their water bill only until February 1999 while the electrical utility was disconnected on the same year.[9] On February 5, 2004, the Municipal Trial Court in Cities ruled in favor of respondents and held that petitioners forcibly entered the subject premises. It noted that:
[I]n 1994 defendant Lopez and a certain Nolan Kaimo filed a case for recovery of possession versus herein plaintiffs [respondents] who were already occupants of a portion thereof, but the same was dismissed for technical reasons. In 1996, the defendants were able to secure TCT T12332 in their name and which cover not only their residential lot but also the adjacent lot which plaintiffs occupied and where their house was erected. Then, in 1997 the plaintiffs had a clash with defendants when the latter allegedly destroyed plaintiffs fence which conflict reached Barangay Captain Laxas attention. These series of events clearly tend to show the many attempts of defendant Lopez to oust the plaintiffs from the premises and occupy the same as his own. And, the last event is the one related in the instant case where the defendants, sensing that plaintiffs were not present and their house already destroyed by the elements, had the lot relocated and fenced as a consequence of which plaintiffs were totally deprived of possession thereof.[10]

The Municipal Trial Court did not lend credence to petitioners claims that respondents abandoned their house and that the same was destroyed by natural elements. It held that despite petitioners constructive possession following the issuance of TCT No. T-12332, they were not justified in making such forcible entry.[11] The dispositive portion of the Decision[12] states:
WHEREFORE, judgment is hereby rendered: 1. Directing defendants [petitioners] to remove the concrete fence, steel gate, grills and other structures found on the premises

occupied by plaintiffs previous to the forcible entry, and after which to deliver possession thereof to plaintiffs smoothly and peacefully; 2. Directing defendants [petitioners] to pay the value of the house and improvements in the sum of P85,200.00; 3. Ordering defendants [petitioners] to further pay litigation expenses and the costs, and the sum of P10,000.00 as attorneys fees. SO ORDERED.[13]

Petitioners appealed to the Regional Trial Court of Surigao City/Surigao del Norte, which reversed the ruling of the Municipal Trial Court in Cities. In its August 17, 2004 Decision, [14] the Regional Trial Court dismissed the case on the ground that the evidence clearly prove abandonment on the part of respondents.[15] Respondents filed a petition for review[16] before the Court of Appeals which affirmed in toto the Decision of the Municipal Trial Court in Cities. It found that while respondents left the house in 1999 when respondent Samuel was assigned to Placer, Surigao del Norte, this fact alone does not establish abandonment. Moreover, the appellate court noted that respondents enjoy priority of possession, and that they paid the corresponding taxes due on the house.[17] Thus:
WHEREFORE, the instant petition is hereby GRANTED. The Decision dated 17 August 2004 of the Regional Trial Court, Tenth (10th) Judicial Region, Branch No. 29 of Surigao City in Civil Case No. 6229 is REVERSED and SET ASIDE. The Judgment dated 05 February 2004 of the Municipal Trial Court in Cities, Branch No. 2 of Surigao City in Civil Case No. 02-5950 for Forcible Entry with Damages is AFFIRMED IN TOTO. SO ORDERED.[18]

Petitioners motion for reconsideration was denied, hence this petition on the following grounds:
THE COURT OF APPEALS ERRED IN RULING THAT THE HEREIN RESPONDENTS DID NOT ABANDON THEIR NIPA HOUSE DESPITE THE FOLLOWING UNDISPUTED FACTS, TO WIT: A THE LOT OVER WHICH THE NIPA HOUSE WAS CONSTRUCTED IS OWNED BY THE HEREIN PETITIONERS AND COVERED BY TCT-T12332; B NOBODY WAS LEFT STAYING IN THE NIPA HOUSE FOR YEARS AND THE WATER AND ELECTRICAL CONNECTIONS IN THE NIPA HOUSE WERE ALREADY CUT OFF AS EARLY AS 1999.

Petitioners argue that the disconnection of water and electric supply in respondents house is proof of their intention to abandon the house, especially because respondents are not the owners of the land on which the house stood. Petitioners also allege that, even assuming arguendo that the Municipal Trial Court correctly decided on the issue of possession, the award of Php85,200.00 representing the value of improvements and attorneys fees is not supported by evidence. On the other hand, respondents claim that they did not abandon their house, and that the abandonment of a right, claim or property must be clear, absolute, and irrevocable. On the award of Php85,200.00, respondents aver that the issue was raised for the first time on appeal.

The petition lacks merit. In Dy v. Mandy Commodities Co., Inc.,[19] the Court held that there is forcible entry or desahucio when one is deprived of physical possession of land or building by means of force, intimidation, threat, strategy or stealth. The basic inquiry centers on who has the prior possession de facto. The plaintiff must prove that he was in prior possession and that he was deprived thereof. In the instant case, respondents house was constructed in 1983 and they had prior physical possession until they were deprived thereof by petitioners. To substantiate their claims, respondents submitted the affidavit, dated September 20, 2002,[20] of Carlos C. Menil and Lolito S. Bito, who witnessed the demolition of respondents house during the latters absence. Mr. Menil and Mr. Bito attested that they saw petitioner Rogelio personally supervising the demolition of respondents house, and that he erected a concrete fence enclosing the area where the house formerly stood. Petitioners failed to refute the foregoing allegations except with bare denials. While petitioners hold title to the subject property where the house was located, the sole issue in forcible entry cases is who had prior possession de facto of the disputed property.[21] In Dy, the Court held that these are summary proceedings intended to provide an expeditious means of protecting actual possession or right of possession of property. Title is not involved; that is why it is a special civil action with a special procedure.[22]

The Court of Appeals correctly held that respondents did not abandon their house. Abandonment requires (a) a clear and absolute intention to renounce a right or claim or to desert a right or property; and (b) an external act by which that intention is expressed or carried into effect. The intention to abandon implies a departure, with the avowed intent of never returning, resuming or claiming the right and the interest that have been abandoned.
[23]

There is none in this case. The disconnection of water and electric supply and the fact that

respondents left the house when respondent Samuel was assigned to Surigao del Norte in 1999, do not constitute abandonment. As correctly found by the Court of Appeals, respondents left valuables inside the house and had the same padlocked, which acts constitute assertion and protection of their right over the subject house and negate renunciation and intention to lose the same.[24] It bears stressing that the instant case was preceded by the filing of actions for recovery of possession and malicious mischief before the Office of the Punong Barangay. Likewise, upon discovery of petitioners acts of intrusion, respondents immediately filed a complaint for forcible entry and damages before the Municipal Trial Court in Cities. The Certification to File Action dated August 26, 2002 shows that no settlement or conciliation was reached.[25] It is clear from the foregoing that respondents have not been remiss in asserting their rights and that petitioners claims over the subject property have not gone unchallenged.

The Court affirms the award of Php85,200.00 representing the value of improvements and attorneys fees. The issue on the propriety of the award was raised for the first time on motion for reconsideration before the Court of Appeals. Well-settled is the rule that issues not raised below cannot be raised for the first time on appeal.[26] WHEREFORE, based on the foregoing, the petition

is DENIED. The March 24, 2008 Decision of the Court of Appeals in CAG.R. SP No. 00113-MIN finding petitioners liable for forcible entry is AFFIRMED. SO ORDERED.