REPUBLIC OF THE PHILIPPINES MUNICIPAL TRIAL COURT IN CITIES ANTIPOLO CITY

SAMAHAN NG MGA TAGA SITIO EAST KAMIAS HOMEOWNERS ASSOCIATION, INC., Plaintiff, -versusCIVIL CASE NO. 075-08 For: Recovery of Possession with damages

SPOUSES WARREN AND OFELIA NOVAL, NORMA CABANGON, MA. LUISA GUILLERMO, RAFAEL SIBUYO, SPOUSES LEGUNDINA ALIBIN., Defendants, x--------------------------------------------------x POSITION PAPER

Defendants, through counsel, unto this Honourable Court, respectfully submit to dismiss the case for the following reasons:

The case filed by the plaintiff is not within the jurisdiction of the Honorable Court.

1. The nature of the case is for recovery of possession. In this jurisdiction, the three kinds of actions for the recovery of possession of real property are: a. Accion interdictal, or an ejectment proceeding which may be either that for forcible entry (detentacion) or unlawful detainer (desahucio), which is a summary action for recovery of physical possession where the dispossession has not lasted for more than one year, and should be brought in the proper inferior court; b. Accion publiciana or the plenary action for the recovery of the real right of possession, which should be brought in the proper Regional Trial Court when the dispossession has lasted for more than one year; and

c. Accion reinvindicatoria or accion de reivindicacion, which is an action for the recovery of ownership which must be brought in the proper Regional Trial Court1 2. As stated, an ejectment proceeding should be filed with the proper inferior court while Accion publiciana and Accion reinvindicatoria should be filed with the Regional Trial Court. The herein complaint is a case for recovery of possession filed with the Municipal Trial Court. Clearly, the case filed by the plaintiff is an ejectment proceeding.

3. Actions for unlawful detainer and forcible entry must be filed within one year from the date possession is lost.2

4. The contested lots had been in possession by defendants and others similarly situated since 1989 in the concept of an owner or claimant and therefore even prior to the issuance of the TCT No. 324182, dated March 12, 1992, allegedly owned by herein plaintiff . The complaint was filed only in July 29, 2008.

5. Clearly, the herein complaint for ejectment filed by herein plaintiff against herein defendants is filed way out of time and therefore not within the jurisdiction of this Honorable Court. The complaint should have been filed before the Regional Trial Court of Antipolo City for recovery of possession and not before this

Honorable Court who has no jurisdiction over the disposition of real property lasting for more than ten (10) years;

Encarnacion vs Amigo G.R No. 169793 September 15 2006 Bejar vs Caluag G.R. No. 171277 February 15, 2007

Transfer Certificate of Title No. 324182 issued by the Registry of Deeds of Marikina City in favor of plaintiff covers an entirely different lot from that of the defendants.

6.

The acquisition of the same lots was by virtue of an executive

pronouncement declaring the same as alienable and disposable lands of the public domain and subsequently awarded to defendant and other bonafide tenants therein;

7.

However, when those were surveyed, discrepancy occurs as to its exact

boundaries as there were some lots that had already been titled and some still unregistered.

8.

Transfer Certificate of Title No. 324182 issued by the Registry of Deeds

of Marikina City in favor of plaintiff covers an entirely different, but not the one occupied by the defendants and other adjoining lot claimants.

9.

Because of all these confusions, Memorandum Order No. 72 was issued

by President Gloria Macapagal-Arroyo directing the Department of Justice to conduct an investigation regarding the conflicting claims of

owners/possessors/claimants to the lots covered by said TCT No. 324182 and therefore, this complaint is premature as the respective conflicting, claims on the subject lot and other covered by presidential proclamation has not been resolved. The Department of Justice has not yet submitted no completed its investigation on the over-lapping of titles.

10.

Thus, defendants were surprised to learn that plaintiff is claiming lots by

virtue of the alleged purchase and/or acquisition from the National Housing Authority and thereafter demanded defendants to vacate the same.

11.

As defendants legally owned and possessed the lot where their house is

constructed, they cannot be declared as an illegal occupant or settler of a portion of the 140 square meters lots covered by TCT No. 324182.

The case must necessarily fail for lack of cause of action

12. As stated, the nature of the complaint is that of an ejectment case, as it is

filed in the municipal trial court. 13. To make out a suit for illegal detainer or forcible entry, the complaint must

contain two mandatory allegations: (1) prior physical possession of the property by the plaintiff; and (2) deprivation of said possession by another by means of force, intimidation, threat, strategy or stealth. This latter requirement implies that the possession of the disputed property by the intruder has been unlawful from the very start.3 14. Plaintiff cannot claim that the possession of the defendants is illegal. The

possession of the defendant of the disputed property was not pursuant to any express or implied contract neither of the plaintiff nor its assignor National Housing Authority. Resultantly, the defendants right of possession over the disputed portion is not subject to expiration or termination. At no point can it be said that defendants possession of the disputed portion ceased to be legal and became an unlawful withholding. Hence, no ejectment or unlawful detainer suit can prosper against the defendants.

PRAYER

Baes v. Lutheran Church in the Philippines, G.R. No. 142308, November 15, 2005, 475 SCRA 13, 34, citing David v. Cordova, 464 SCRA 385 (2005), Sps. Tirona v. Alejo, 367 SCRA 17 (2001).

Wherefore, premises considered, it is respectfully prayed that judgment be rendered dismissing the complaint for utter lack of legal and factual basis and rendering judgment on the counterclaim against the plaintiff.

Other reliefs just and equitable are equally prayed for.

Manila, May 19, 2010

PURISIMA OFFICE

AND

PURISIMA

LAW

Block 42 Lot 17 justice Fernandez Street, Katarungan Village, Poblacion Muntinlupa City

By: ANGEL R. PURISIMA III IBP NO. 733987 1-07-08 Manila IV PTR NO. 6247198 1-07-08 Manila ROLL NO. 33567