G.R. No.

158687

January 27, 2006

FRISCO F. DOMALSIN, Petitioner,

vs.
SPOUSES JUANITO VALENCIANO and AMALIA VALENCIANO, Respondents.
DECISION
CHICO-NAZARIO, J.:
Before Us is a petition for review which seeks to set aside the decision1 of the Court of Appeals in CA-G.R. SP No. 69415
dated 20 August 2002 which reversed and set aside the decision2 of Branch 63 of the Regional Trial Court (RTC) of La
Trinidad, Benguet, in Civil Case No. 01-CV-1582(150) dated 23 January 2002, which affirmed the decision3 of the Municipal
Circuit Trial Court (MCTC) of Tuba-Sablan, Tuba, Benguet, in Civil Case No. 150 dated 20 November 2000, declaring
petitioner Frisco F. Domalsin the actual possessor of the lot in dispute and ordering, inter alia, respondent spouses Juanito
and Amalia Valenciano to vacate and deliver the physical possession thereof to the former, and its Resolution4 dated 20 May
2003 denying petitioners motion for reconsideration.
The respective allegations of the parties as contained in the complaint and answer are substantially summarized by the Court
of Appeals as follows:
The property subject of this action for forcible entry is a parcel of land located at sitio Riverside, Camp 3, Tuba, Benguet.
Respondent Frisco B. Domalsin claims to be the lawful owner and possessor of said parcel of land since 1979 up to the
present. He declared it for taxation purposes in 1983 as (per) Tax Declaration No. 9540 issued on September 12, 1983 by the
Municipal Assessor of Tuba Benguet. He allegedly introduced improvements consisting of levelling, excavation, riprapping of
the earth and a private road to the river, fruitbearing trees and other agricultural plants of economic value. He was in
continuous, adverse possession and in the concept of an owner for the past nineteen (19) years.
On August 1, 1998, petitioners Spouses Juanito Valenciano and Amalia Valenciano (Sps. Valenciano, for brevity) allegedly
entered the premises to construct a building made of cement and strong materials, without the authority and consent of
respondent, by means of force and strategy, and without a building permit from the Department of Public Works and Highways
(DPWH, for brevity). Respondent protested and demanded that petitioners Sps. Valenciano halt construction of said building,
but the latter refused to do so. Hence, he filed the instant case.
Petitioners Sps. Valenciano, on the other hand, claimed that the ongoing construction was with the consent and conformity of
the DPWH and in fact the improvements found in the property were introduced by the residents thereof, including its first
residents, William and Gloria Banuca, and not by respondent. The premises on which petitioners Sps. Valenciano are
constructing their house were leveled after the earthquake in 1990 by the Banuca spouses. Petitioners Sps. Valenciano are
just starting the construction because the permission was only given now by Gloria Banuca.5
On 18 August 1998, petitioner filed before the MCTC of Tuba, Benguet, a complaint for Forcible Entry with Prayer for
Preliminary Mandatory Injunction with Application for Issuance of a Temporary Restraining Order plus Damages.6 The
complaint was amended on 27 August 1998.7 Per Order dated 19 August 1998, a Temporary Restraining Order (TRO) was
issued ordering respondents to desist and cease and refrain from continuing the construction of a house on the land in
question.8
On 27 August 1998, respondent spouses Juanito and Amalia Valenciano filed their Answer with Opposition to the Prayer for
Issuance of Writ of Preliminary Injunction.9 On 07 September 1998, they filed an Answer to the Amended Complaint10 to which
petitioner filed a Reply.11
On 15 September 1998, the MCTC issued another TRO.12
The pre-trial order dated 6 November 1998 contained, among other things, petitioners admission that he was temporarily not
operating any business in the area, and respondents admission regarding the issuance of Tax Declarations on the property in
dispute in petitioners name.13
Trial ensued. Petitioner presented Mariano Suyam and Tonsing Binay-an, two of his former truck drivers from 1981 to 1985 in
his business of hauling sand, gravel and other aggregates at Riverside, Camp 3, Tuba, Benguet.
Mariano Suyam testified that sometime in 1981, petitioner caused the construction of a private road leading to the Bued River
from Kennon Road. He added that petitioner constructed two houses, the first was located along the road-right-of-way of
Kennon Road where respondents are now constructing their house, while the second was located below the private road
around 40 to 60 meters down from Kennon Road. He explained that the first house was used for sleeping quarters and resting
1

center for laborers, while petitioner used the second one as his quarters. He said William Banuca was hired as foreman in
1983 and that the latter and his family stayed in the second house.
Tonsing Binay-an corroborated the testimony of Suyam as regards the two houses constructed by petitioner and added that
petitioner was the manager of Salamander Enterprises and had a concession permit from the Bureau of Mines to haul gravel
and sand.
Petitioner testified that he is a lawyer-businessman formerly engaged in trucking business, hauling sand and gravel, and
operated under the name Salamander Enterprises.14 He narrated that while he was passing Kennon Road, he discovered that
a portion of the Bued River, Camp 3, Tuba Benguet, can be a potential source of supplies for his business. Though the area
was steep and deep, he scouted a place where he can construct a road from Kennon Road to the Bued River. In the course of
cleaning the area, his workers noticed that the place had been tilled. A certain Castillo Binay-an appeared informing him that
he was the occupant of the site of the proposed private road. After agreeing on the consideration, the former executed a Deed
of Waiver and Quitclaim15 over the land in his favor.
Thereafter, the Office of the Highway District Engineer of Baguio, Ministry of Public Highways (now Department of Public
Works and Highways [DPWH]) issued a permit in favor of petitioner to extract construction materials at Camp 3, Tuba,
Benguet,16 which was followed by the issuance on 1 October 1981 of Commercial Permit No. 147 by the Office of the Mines
Regional Officer, Mineral Region No. 1, Bureau of Mines and Geo-Sciences (Bureau of Mines).17 The Commercial Permit,
which was renewable every year, was last renewed in 1987.18
Based on the Deed of Waiver and Quitclaim executed by Castillo Binay-an, petitioner was able to apply for, and was issued, a
tax declaration over the land covering one hectare. Tax Declaration No. 954019 dated 12 September 1983 was issued to
petitioner describing the land bounded on the North by Bued River, on the South by Kennon Road, on the East by Kennon
Road, and on the West by a Creek. With the revision of the fair market value and assessed value of lands, Tax Declaration
No. 94-004-00327 dated 12 November 1994 was issued to him.20 From 1983 up to 1998, petitioner has been regularly paying
real property taxes over the land.
Petitioner disclosed that in 1983, William Banuca applied for, and was accepted, as foreman.21 Due to the nature of his job,
Banuca was permitted to stay in the second house beside the private road.22 Banuca now lives permanently in said house
after petitioner gave it to him. Petitioner revealed that the houses his former laborers constructed were awarded to them as a
kind gesture to them. As to the land he occupied along the Kennon Road where the first house was erected, he claims that
same still belongs to him. This house, which his laborers and drivers used as a resting area, was cannibalized and leveled,
and the land over which it once stood was taken possession by respondents who are now building their house thereon.
Gloria Banuca testified for respondents. She disclosed that it was she who invited respondents to come and reside at
Riverside, Camp 3, Tuba, Benguet. She said she knew petitioner to be engaged in the sand and gravel business in Tuba,
Benguet, from 1981 to 1985, and that the latter stopped in 1985 and never returned to haul sand and gravel at the Bued River.
She claimed she never saw petitioner introduce any improvements on the land he claimed he bought from Castillo Binay-an,
and that it was she and the other residents who introduced the existing improvements.
She narrated that in 1983, she planted fruit-bearing trees in the area where respondents were constructing their house which
is located along the Kennon Roads road-right-of-way, fronting petitioners property. After the earthquake of 1990, the private
road constructed by petitioner became impassable and it was she who hired the equipment used to clear the same. She even
leveled the area where respondents were building their home. Based on the ocular inspection, she said this area is within the
15-meter radius from the center of the road. This area, she claims, was sold to her by the Spouses Jularbal. However, the
agreement between them shows that what was sold to her were the improvements near her house which was 40 meters down
from Kennon Road and the improvements along Kennon Road.23
Agustin Domingo next testified for respondents. He testified that in 1986, upon the invitation of Gloria Banuca, he transferred
his residence to sitio Riverside because of its proximity to his place of work. He stayed there for good and even buried his
father near his house. He said that in 1990, the private road constructed by petitioner was covered by boulders, soil and rocks,
and it was Mrs. Banuca who initiated the clearing of the road. Finally, he declared that since 1986, he never saw petitioner
introduce any improvement in the area.
Respondent Juanito Valenciano revealed that he is the cousin of Gloria Banuca. He narrated that in 1984, he went to
Riverside to see the latter whose husband, William Banuca, was working as foreman of petitioner. At that time, the lot under
litigation was still a hill. It was Gloria Banuca who leveled the hill and told him to construct his house there. Finding the place to
be an ideal place to build his house, he paid the Banucas P10,000.00 for the improvements.
He explained that before he started building his house, he sought the permission of the Benguet District Engineer, DPWH,
which the latter granted. In August 1998, he received a notice24 to stop and desist from continuing the construction of a
permanent one-storey house made of hollow blocks and cement since the condition was only to utilize light materials.
Thereafter, a letter dated 22 January 1999 was sent to him informing him that the temporary permit issued to him for the
improvement/utilization of a portion of the national road along Kennon Road had been revoked for non-submission of the
2

waiver as required by the Office of the District Engineer and his non-compliance with the condition that no permanent
structures are to be constructed within the road-right-of-way. He, however, denied receiving said letter.
Juan de Vera, a retired DPWH foreman, testified last for the respondents. He claimed he witnessed the execution of the
document25 regarding the sale by Adriano Jularbal to Gloria Banuca of improvements found near the house of the latter in the
amount of P1,000.00.
The MCTC found that what is being contested is the possession of a portion of the road-right-of way of Kennon Road which is
located in front of a parcel of land that petitioner bought by way of Deed of Waiver and Quitclaim from Castillo Binay-an. It held
that petitioner had prior material possession over the subject land. It ruled that the destruction of his house built thereon by the
earthquake in 1990, and later cannibalized without being reconstructed was not tantamount to abandonment of the site by the
petitioner because it was destroyed by a fortuitous event which was beyond his control. It explained that his possession over
the land must be recognized by respondents who came later after the earthquake. It brushed aside respondents allegation
that the land in dispute was abandoned by the latter after he stopped operating his sand and gravel business in 1985 and
never returned anymore, and when the house erected on it was destroyed during the 1990 earthquake, it was no longer
reconstructed and was subsequently leveled or demolished by Gloria Banuca. However, it pronounced that respondents
action to occupy the land was done in good faith considering that their occupation of the land was with the assurance of the
seller (Gloria Banuca) and that they were armed with the permit issued by the DPWH for him to construct his house thereon.
On 20 November 2000, the MCTC came out with its decision, the decretal portion of which reads:
WHEREFORE PREMISES CONSIDERED, decision is hereby rendered in favor of plaintiff, FRISCO DOMALSIN, and against
defendants, JUANITO VALENCIANO and AMALIA VALENCIANO, with the following:
1. Order to declare the injunction permanent.
2. Order the plaintiff as the actual possessor of the lot in question.
3. Order the defendant(s) to vacate and deliver the physical possession voluntarily of the disputed land to plaintiff
within 60 days from receipt of this decision.
4. Order defendant(s) to remove his structure within from receipt of this decision.
5. Order the defendant(s) to (sic) plaintiff the amount of P10,000.00, as litigation expenses.
6. Order defendant(s) to pay the cost of suit26
Respondents appealed the decision to the RTC.27 In affirming the decision in toto the RTC ratiocinated:
It may be well to consider that even after plaintiffs business ceased operation, he religiously paid the taxes due thereon.
Appellants theory that the plaintiff-appellee abandoned the property does not sit well and finds no support in the record.
Notice that since 1985 up to mid-1990, the Banucas never laid claim over the property taking into consideration that they were
already residents of the place. This only goes to show that they acknowledged and respected the prior possession of the
plaintiff-appellee. Besides, what right has Gloria to cause the leveling of the property destroying the natural contour thereof, to
presume that plaintiff-appellee abandoned it and to invite and allow other persons to settle thereat? Absolutely none. Knowing
fully well that the plaintiff-appellee has prior possession of the property, Glorias actions are unjustified, to say the least. Her
consummated act of leveling the property without the knowledge of the plaintiff-appellee is viewed as a test to determine
whether or not the latter is still interested in the property. From then on until 1998 (but before the construction), the Banucas
still recognize the plaintiffs possession. But as Gloria claims to have heard no word from the plaintiff, she unilaterally declared
that the place is now abandoned as she "invited and allowed" the defendants to live and construct their house thereat.
Contrary to the assertion of the appellants, there was no abandonment simply because plaintiff-appellee continuously paid the
corresponding taxes due thereon and that he promptly objected to the construction of the defendants-appellants house.
These are clear manifestations of his intention not to abandon the property. Sad to say though that here is a former employer.
By passing off such property to be hers is so unkind, unfair and against social order. It is very clear that the Banucas knew of
the prior possession of the plaintiff way back then so that they themselves never personally build construction over the
property. If they honestly believe that they now "own" the land, why will they still have to invite other people who are not their
relatives to settle thereat? Why the preference of strangers over relatives? The Court does not believe that they did not
receive any compensation for having "allowed" strangers, the defendants included, to settle on the land.
From all the foregoing, Gloria is clearly in bad faith. And her being in bad faith must be corrected and if warranted, must be
meted appropriate penalty. If the Banucas are in bad faith, then the appellants cannot have better rights either. The Banucas
transferred nothing to them. Defendants-appellants cannot even be considered as builders in good faith. It must be noted that
3

they were prohibited by the plaintiff from going further but they ignored it. They shall lose what was built (Art. 449, Civil Code).
Again, if the Banucas believe that they have an action or a right to deprive the plaintiffs possession, why did they not invoke
judicial interference as required under Art. 536 of the same code? Nonetheless, notwithstanding the fact of leveling without the
knowledge of the plaintiff-appellee, the same did not affect his possession (Art. 537, Civil Code).28
Via a petition for review, respondents appealed to the Court of Appeals. The Court of Appeals made a sudden turn-around
and reversed the decision under review. Its decision dated 20 August 2002 reads in part:
[T]here is a need to clarify a few things. What is undisputed are the identity and nature of the property subject of the action for
forcible entry. The subject of the action concerns a portion of the road-right-of-way along Kennon Road just above the private
road constructed by respondent. The problem, however, is that petitioners Sps. Valenciano started constructing a house on
the same spot where a house belonging to respondent once stood. Both parties are now asserting that they are entitled to the
possession of said lot. But the decision of the lower court seems to imply that respondents right to possess the subject
property stems from his acquisition of the one-hectare property below it. That is not the case.
We must emphasize that the subject of the deed of quitclaim and waiver of rights of Castillo Binay-an was not the road-rightof-way but the sloping terrain below it. This was the property acquired by the respondent to have access to the sand and
gravel on the Bued River. It did not include the road-right-of-way. As regards Gloria Banucass claims, the evidence show that
her agreement with Jularbal involved only the improvements near her residence down the private road and not the road-rightof-way. Since the subject property is a road-right-of-way, it forms part of the public dominion. It is not susceptible to private
acquisition or ownership. Prolonged occupation thereof, improvements introduced thereat or payment of the realty taxes
thereon will never ripen into ownership of said parcel of land. Thus, what We have are two parties, neither of which can be
owners, only possessors of the subject property. Beyond these two, only the government has a better right to the subject
property which right it may exercise at any time. This bears emphasizing because if either party has possessory rights to the
subject property, it is not predicated on ownership but only on their actual possession of the subject property.
xxxx
There is no doubt that respondent had prior physical possession of the subject property. He entered and acquired possession
of the subject property when he built his house thereon. The house was destroyed during the 1990 earthquake and
respondent did not rebuild it. The mound on which it stood was later leveled by Gloria Banuca and in 1998 petitioners Sps.
Valenciano began construction thereat. Petitioners Sps. Valenciano claim there was abandonment, but the lower court ruled
that respondent did not abandon the subject property as he continued to pay the realty taxes thereon and objected to
petitioners Sps. Valencianos construction. We believe, and so hold, that at this point in time, it is immaterial whether or not
there was abandonment by respondent. The fact remains that Gloria Banuca took possession of the subject property soon
after the earthquake. She leveled the mound and the ruins of respondents house, yet respondent remained silent.
Respondent objected only after petitioners Sps. Valenciano started construction of the house on the subject property.
Respondent cannot now interpose an action for forcible entry against petitioners Sps. Valenciano, which he should have filed
against Gloria Banuca, petitioners Sps. Valencianos predecessor-in-interest. But more than a year had passed and his right
to do so lapsed. Thus, respondents prior possession is material only as against Gloria Banuca and only within a period of one
year from the time she wrested possession of the property from respondent.
We view with distate Gloria Banucas ingratitude toward her husbands former employer. Her actions smack of the proverbial
hand being offered in aid but the person to whom it is offered would rather have the whole arm instead. This is an instance
where it is the employees who commit injustice against their employer. Nonetheless, petitioners Sps. Valenciano should not
suffer because of Gloria Banucas ingratitude for the former came across the property in good faith.
But respondent is also reminded that he only has himself to blame. His failure to assert his right for an unreasonable and
unexplained length of time allowed Gloria Banuca to wrest possession from him. Especially in this case where they do not and
cannot own the subject property, actual possession becomes particularly important.29
The case was disposed as follows:
WHEREFORE, in view of the foregoing, the petition is GRANTED and the decision of the Municipal Circuit Trial Court of tubaSablan dated November 20, 2000 as affirmed by the Regional Trial Court on January 23, 2002 is hereby REVERSED and
SET ASIDE.30
The Motion for Reconsideration filed by petitioner was denied in a resolution31 dated 20 May 2003.
Petitioner is now before us seeking redress. He assigns the following as the errors committed by the Court of Appeals:
I.

THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT PRIVATE RESPONDENT (NOW PETITIONER)
FRISCO DOMALSIN ABANDONED THE PROPERTY SUBJECT OF THE LITIGATION.
II.
THE HONORABLE COURT OF APPEALS ERRED IN REVERSING AND SETTING ASIDE THE DECISION OF THE
REGIONAL TRIAL COURT OF LA TRINIDAD, BENGUET, BRANCH 63 WHICH AFFIRMED THE DECISION OF THE
MUNICIPAL CIRCUIT TRIAL COURT OF TUBA-SABLAN.
At the outset, it must be made clear that the property subject of this case is a portion of the road-right-of way of Kennon Road
which is located in front of a parcel of land that petitioner bought by way of Deed of Waiver and Quitclaim from Castillo Binayan.32 The admission33 of petitioner in his Amended Complaint that respondents started constructing a building within the
Kennon Road road-right-of-way belies his claim that the lot in question is his.
In light of this exposition, it is clear that neither the petitioner nor the respondents can own nor possess the subject property
the same being part of the public dominion. Property of public dominion is defined by Article 420 of the Civil Code as follows:
ART. 420. The following things are property of public dominion:
(1) Those intended for public use such as roads, canals, rivers, torrents, ports and bridges constructed by the State, banks,
shores, roadsteads, and other of similar character.
(2) Those which belong to the State, without being for public use, and are intended for some public service or for the
development of the national wealth.
Properties of public dominion are owned by the general public.34 Public use is "use that is not confined to privileged
individuals, but is open to the indefinite public."35 As the land in controversy is a portion of Kennon Road which is for the use of
the people, there can be no dispute that same is part of public dominion. This being the case, the parties cannot appropriate
the land for themselves. Thus, they cannot claim any right of possession over it. This is clear from Article 530 of the Civil Code
which provides:
ART. 530. Only things and rights which are susceptible of being appropriated may be the object of possession.
Notwithstanding the foregoing, it is proper to discuss the position of the Court of Appeals for comprehensive understanding of
the facts and the law involved.
Petitioner maintains that the Court of Appeals erred when it ruled that he abandoned the land being disputed contrary to the
rulings of the MCTC and RTC. The MCTC found there was no abandonment of the land because the house erected thereon
was destroyed by a fortuitous event (earthquake), while the RTC ruled there was no abandonment because petitioner paid
taxes due on the land and that he promptly objected to the construction of respondents house which are clear manifestations
of his intention not to abandon the property.
A reading of the decision of the Court of Appeals shows that it did not reverse the two lower courts on the issue of
abandonment. It merely declared that such issue is not material in the resolution of the case at bar. It faulted petitioner for not
asserting his right for a long time allowing Gloria Banuca to wrest the possession of the land in question from petitioner by
leveling the house he built thereon and pronounced that actual possession becomes important in a case where parties do not
and cannot own the land in question.
From the foregoing it appears that the Court of Appeals did not give weight or importance to the fact that petitioner had prior
physical possession over the subject land. It anchored its decision on the fact that the parties do not and cannot own the land
and that respondents now have actual possession over it.
Ejectment proceedings are summary proceedings intended to provide an expeditious means of protecting actual possession
or right to possession of property. Title is not involved. The sole issue to be resolved is the question as to who is entitled to the
physical or material possession of the premises or possession de facto.36
The Court of Appeals erred when it preferred the present and actual possession of respondents vis--vis the prior possession
of petitioner on the ground that the parties do not and cannot own the lot in question. Regardless of the actual condition of the
title to the property, the party in peaceable, quiet possession shall not be thrown out by a strong hand, violence or terror.
Neither is the unlawful withholding of property allowed. Courts will always uphold respect for prior possession. Thus, a party
who can prove prior possession can recover such possession even against the owner himself. Whatever may be the character
of his possession, if he has in his favor prior possession in time, he has the security that entitles him to remain on the property
until a person with a better right lawfully ejects him.37
5

The fact that the parties do not and cannot own the property under litigation does not mean that the issue to be resolved is no
longer priority of possession. The determining factor for one to be entitled to possession will be prior physical possession and
not actual physical possession. Since title is never in issue in a forcible entry case, the Court of Appeals should have based its
decision on who had prior physical possession. The main thing to be proven in an action for forcible entry is prior possession
and that same was lost through force, intimidation, threat, strategy and stealth, so that it behooves the court to restore
possession regardless of title or ownership.38
Inasmuch as prior physical possession must be respected, the Court of Appeals should have ruled squarely on the issue of
abandonment because it gave precedence to the actual present possession of respondents. If, indeed, there was
abandonment of the land under consideration by petitioner, only then should respondents be given the possession of the
same since abandonment is one way by which a possessor may lose his possession.39
Abandonment of a thing is the voluntary renunciation of all rights which a person may have in a thing, with the intent to lose
such thing.40 A thing is considered abandoned and possession thereof lost if the spes recuperandi (the hope of recovery) is
gone and the animus revertendi (the intention of returning) is finally given up.41
In the case before us, we find that petitioner never abandoned the subject land. His opposition to the construction of
respondents house upon learning of the same and the subsequent filing of the instant case are clear indicia of nonabandonment; otherwise, he could have just allowed the latter to continue with the construction. Moreover, the fact that the
house petitioner built was destroyed by the earthquake in 1990, was never rebuilt nor repaired and that same was leveled to
the ground by Gloria Banuca do not signify abandonment. Although his house was damaged by the earthquake, Gloria
Banuca, the person who supposedly demolished said house, had no right to do the same. Her act of removing the house and
depriving petitioner of possession of the land was an act of forcible entry. The entry of respondents in 1998 was likewise an
act of forcible entry.
The next question is: Was the action filed the correct one and was it timely filed?
Well-settled is the rule that what determines the nature of the action as well as the court which has jurisdiction over the case
are the allegations in the complaint.42 In actions for forcible entry, the law tells us that two allegations are mandatory for the
municipal court to acquire jurisdiction: First, the plaintiff must allege prior physical possession of the property. Second, he
must also allege that he was deprived of his possession by any of the means provided for in Section 1, Rule 70 of the Rules of
Court.43 To effect the ejectment of an occupant or deforciant on the land, the complaint should embody such a statement of
facts as to bring the party clearly within the class of cases for which the statutes provide a remedy, as these proceedings are
summary in nature. The complaint must show enough on its face to give the court jurisdiction without resort to parol
evidence.44
A look at the Amended Complaint filed by petitioner clearly shows a case for forcible entry. Petitioner alleged therein that he
has been in possession of the subject land for the last nineteen years and that respondents, in the first week of August 1998,
without his permission and consent, entered the land by means of force, strategy and stealth and started the construction of a
building thereon; and upon being informed thereof, he requested them to stop their construction but respondents refused to
vacate the land forcing him to file the instant case to recover possession thereof.
The Court of Appeals pronounced that petitioner cannot interpose an action for forcible entry against respondents and that the
same should have been filed against Gloria Banuca. It added that the right to file against the latter had already lapsed
because more than a year had passed by from the time she wrestled possession of the property from the petitioner.
We find such pronouncement to be flawed. An action of forcible entry and detainer may be maintained only against one in
possession at the commencement of the action, and not against one who does not in fact hold the land.45 Under Section
1,46 Rule 70 of the Rules of Court, the action may be filed against persons unlawfully withholding or depriving possession or
any person claiming under them. Considering that respondents are the ones in present actual possession and are depriving
petitioner of the possession of the land in question, it is proper that they be the ones to be named defendants in the case. The
fact that Gloria Banuca was supposedly the one who first committed forcible entry when she allegedly demolished the house
of petitioner does not make her the proper party to be sued because she is no longer in possession or control of the land in
controversy.
As regards the timeliness of the filing of the case for forcible entry, we find that same was filed within the one-year prescriptive
period. We have ruled that where forcible entry was made clandestinely, the one-year prescriptive period should be counted
from the time the person deprived of possession demanded that the deforciant desist from such dispossession when the
former learned thereof.47 As alleged by petitioner in the Amended Complaint, he was deprived of his possession over the land
by force, strategy and stealth. Considering that one of the means employed was stealth because the intrusion was done by
respondents without his knowledge and consent, the one-year period should be counted from the time he made the demand
to respondents to vacate the land upon learning of such dispossession. The record shows that upon being informed that
respondents were constructing a building in the subject land sometime in the first week of August 1998, petitioner immediately
protested and advised the former to stop; but to no avail. The one-year period within which to file the forcible entry case had
not yet expired when the ejectment suit was filed on 18 August 1998 with the MCTC.
6

Despite the foregoing findings, this Court finds that the MCTC and the RTC, as well as the Court of Appeals, to be in error
when they respectively declared that petitioner and respondents to be entitled to the possession of the land in dispute. The
parties should not be permitted to take possession of the land, much more, claim ownership thereof as said lot is part of the
public dominion.
WHEREFORE, the foregoing considered, the instant petition is hereby PARTIALLY GRANTED. Nonetheless, there being a
finding that the subject property is a part of the public dominion, of which neither party is entitled to own nor possess, the
decisions of the Court of Appeals dated 20 August 2002, the Regional Trial Court of La Trinidad, Benguet, dated 23 January
2002, and the Municipal Circuit Trial Court of Tuba-Sablan, Tuba, Benguet, dated 20 November 2000 are SET ASIDE.
Respondents Juanito and Amalia Valenciano are ordered to remove their structure on the subject land within sixty (60) days
from receipt of this decision, and to vacate and deliver the physical possession thereof to the Office of the District Engineer,
Benguet Engineering District, Department of Public Works and Highways.
SO ORDERED.

LUCIANO BRIONES and NELLY BRIONES,

Petitioners,

- versus -

JOSE MACABAGDAL, FE D. MACABAGDAL and

VERGON
REALTY
INVESTMENTS
CORPORATION,
Respondents.

G.R. No. 150666

Present:
CARPIO MORALES, J.,
Chairperson,
BRION,
BERSAMIN,
ABAD,* and
VILLARAMA, JR., JJ.
Promulgated:

August 3, 2010
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
VILLARAMA, JR., J.:

DECISION

On appeal under Rule 45 of the 1997 Rules of Civil Procedure, as amended, is the Decision[1] dated December 11, 2000 of
the Court of Appeals (CA) in CA-G.R. CV No. 48109 which affirmed the September 29, 1993 Decision[2] of the Regional Trial
Court (RTC) of Makati City, Branch 135, ordering petitioners Luciano and Nelly Briones to remove the improvements they
have made on the disputed property or to pay respondent-spouses Jose and Fe Macabagdal the prevailing price of the land
as compensation.
The undisputed factual antecedents of the case are as follows:
Respondent-spouses purchased from Vergon Realty Investments Corporation (Vergon) Lot No. 2-R, a 325-squaremeter land located in Vergonville Subdivision No. 10 at Las Pias City, Metro Manila and covered by Transfer Certificate of
Title No. 62181 of the Registry of Deeds of Pasay City. On the other hand, petitioners are the owners of Lot No. 2-S, which is
adjacent to Lot No. 2-R.
Sometime in 1984, after obtaining the necessary building permit and the approval of Vergon, petitioners constructed
a house on Lot No. 2-R which they thought was Lot No. 2-S. After being informed of the mix up by Vergons manager,
respondent-spouses immediately demanded petitioners to demolish the house and vacate the property. Petitioners, however,
refused to heed their demand. Thus, respondent-spouses filed an action to recover ownership and possession of the said
parcel of land with the RTC of Makati City.[3]
Petitioners insisted that the lot on which they constructed their house was the lot which was consistently pointed to
them as theirs by Vergons agents over the seven (7)-year period they were paying for the lot. They interposed the defense of
being buyers in good faith and impleaded Vergon as third-party defendant claiming that because of the warranty against
eviction, they were entitled to indemnity from Vergon in case the suit is decided against them.[4]
The RTC ruled in favor of respondent-spouses and found that petitioners house was undoubtedly built on Lot No. 2R. The dispositive portion of the trial courts decision reads as follows:
PREMISES CONSIDERED, let judgment be rendered declaring, to wit:
1. That plaintiffs are the owners of Lot No. 2-R of subdivision plan (LRC) Psd-147392 at
Vergonville Subdivision, No. 10, Las Pias, Metro Manila covered by TCT No. 62181 of the Registry of
Deeds of Pasay City on which defendants have constructed their house;
2. Defendants, jointly and severally, are ordered to demolish their house and vacate the
premises and return the possession of the portion of Lot No. 2-R as above-described to plaintiffs within thirty
(30) days from receipt of this decision, or in the alternative, plaintiffs should be compensated by defendants,
jointly and severally, by the payment of the prevailing price of the lot involved as Lot No. 2-R with an area of
8

325 square meters which should not be less than P1,500.00 per square meter, in consideration of the fact
that prices of real estate properties in the area concerned have increased rapidly;
3. Defendants, jointly and severally, pay to plaintiffs for moral damages with plaintiffs plans and
dreams of building their own house on their own lot being severely shattered and frustrated due to
defendants incursion as interlopers of Lot No. 2-R in the sum of P50,000.00;
4.
fees; and,

Defendants, jointly and severally, to pay plaintiffs in the amount of P30,000.00 as attorneys

5. to pay the costs of the proceedings.

Defendants counterclaim against plaintiffs is dismissed for lack of merit and with no cause of
action.

Defendants third-party complaint against third-party defendant Vergonville Realty and Investments
Corporation is likewise ordered dismissed for lack of cause of action and evidently without merit.
On the other hand, defendants, jointly and severally, are liable for the litigation expenses incurred
by Vergonville Realty by way of counterclaim, which is also proven by the latter with a mere preponderance
of evidence, and are hereby ordered to pay the sum of P20,000.00 as compensatory damage; and
attorneys fees in the sum of P10,000.00
SO ORDERED.[5]
On appeal, the CA affirmed the RTCs finding that the lot upon which petitioners built their house was not the one (1)
which Vergon sold to them. Based on the documentary evidence, such as the titles of the two (2) lots, the contracts to sell,
and the survey report made by the geodetic engineer, petitioners house was built on the lot of the respondentspouses.[6] There was no basis to presume that the error was Vergons fault. Also the warranty against eviction under Article
1548 of the Civil Code was not applicable as there was no deprivation of property: the lot on which petitioners built their
house was not the lot sold to them by Vergon, which remained vacant and ready for occupation.[7] The CA further ruled that
petitioners cannot use the defense of allegedly being a purchaser in good faith for wrongful occupation of land.[8]
Aggrieved, petitioners filed a motion for reconsideration, but it was denied by the appellate court.[9] Hence, this
petition for review on certiorari.
Petitioners raise the following assignment of errors:
I.
THE COURT OF APPEALS DECIDED A QUESTION OF SUBSTANCE CONTRARY TO LAW AND
APPLICABLE DECISIONS OF THE SUPREME COURT IN AFFIRMING THE DECISION OF THE TRIAL
COURT ORDERING PETITIONERS TO DEMOLISH THEIR ONLY HOUSE AND VACATE THE LOT AND
TO PAY MORAL AND COMPENSATORY DAMAGES AS WELL AS ATTORNEYS FEE IN THE TOTAL
AMOUNT OF PS[P] 110,000; AND
II.
THE COURT OF APPEALS SANCTIONED THE DEPARTURE OF THE LOWER COURT FROM THE
ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS AS TO CALL FOR AN EXERCISE OF
THE POWER OF SUPERVISION.[10]

In the main, it is petitioners position that they must not bear the damage alone. Petitioners insist that they relied with
full faith and confidence in the reputation of Vergons agents when they pointed the wrong property to them. Even the
President of Vergon, Felix Gonzales, consented to the construction of the house when he signed the building permit.[11] Also,
petitioners are builders in good faith.[12]
The petition is partly meritorious.
At the outset, we note that petitioners raise factual issues, which are beyond the scope of a petition for review
on certiorari under Rule 45 of the Rules. Well settled is the rule that the jurisdiction of this Court in cases brought to it from the
9

CA via a petition for review on certiorari under Rule 45 is limited to the review of errors of law. The Court is not bound to
weigh all over again the evidence adduced by the parties, particularly where the findings of both the trial court and the
appellate court coincide. The resolution of factual issues is a function of the trial court whose findings on these matters are, as
a general rule, binding on this Court, more so where these have been affirmed by the CA.[13] We note that the CA and RTC did
not overlook or fail to appreciate any material circumstance which, when properly considered, would have altered the result of
the case. Indeed, it is beyond cavil that petitioners mistakenly constructed their house on Lot No. 2-R which they thought was
Lot No. 2-S.
However, the conclusiveness of the factual findings notwithstanding, we find that the trial court nonetheless erred in
outrightly ordering petitioners to vacate the subject property or to pay respondent spouses the prevailing price of the land as
compensation. Article 527[14] of the Civil Code presumes good faith, and since no proof exists to show that the mistake was
done by petitioners in bad faith, the latter should be presumed to have built the house in good faith.
When a person builds in good faith on the land of another, Article 448 of the Civil Code governs. Said article
provides,
ART. 448. The owner of the land on which anything has been built, sown or planted in good
faith, shall have the right to appropriate as his own the works, sowing or planting, after payment of the
indemnity provided for in Articles 546 and 548, or to oblige the one who built or planted to pay the price
of the land, and the one who sowed, the proper rent. However, the builder or planter cannot be obliged to
buy the land if its value is considerably more than that of the building or trees. In such case, he shall pay
reasonable rent, if the owner of the land does not choose to appropriate the building or trees after proper
indemnity. The parties shall agree upon the terms of the lease and in case of disagreement, the court shall
fix the terms thereof. (Emphasis ours.)
The above-cited article covers cases in which the builders, sowers or planters believe themselves to be owners of the
land or, at least, to have a claim of title thereto.[15] The builder in good faith can compel the landowner to make a choice
between appropriating the building by paying the proper indemnity or obliging the builder to pay the price of the land. The
choice belongs to the owner of the land, a rule that accords with the principle of accession, i.e., that the accessory follows the
principal and not the other way around. However, even as the option lies with the landowner, the grant to him, nevertheless,
is preclusive. He must choose one.[16] He cannot, for instance, compel the owner of the building to remove the building from
the land without first exercising either option. It is only if the owner chooses to sell his land, and the builder or planter fails to
purchase it where its value is not more than the value of the improvements, that the owner may remove the improvements
from the land. The owner is entitled to such remotion only when, after having chosen to sell his land, the other party fails to
pay for the same.[17]
Moreover, petitioners have the right to be indemnified for the necessary and useful expenses they may have made
on the subject property. Articles 546 and 548 of the Civil Code provide,
ART. 546. Necessary expenses shall be refunded to every possessor; but only the possessor in
good faith may retain the thing until he has been reimbursed therefor.
Useful expenses shall be refunded only to the possessor in good faith with the same right of
retention, the person who has defeated him in the possession having the option of refunding the amount of
the expenses or of paying the increase in value which the thing may have acquired by reason thereof.
ART. 548. Expenses for pure luxury or mere pleasure shall not be refunded to the possessor in
good faith; but he may remove the ornaments with which he has embellished the principal thing if it suffers
no injury thereby, and if his successor in the possession does not prefer to refund the amount expended.
Consequently, the respondent-spouses have the option to appropriate the house on the subject land after payment to
petitioners of the appropriate indemnity or to oblige petitioners to pay the price of the land, unless its value is considerably
more than the value of the structures, in which case petitioners shall pay reasonable rent.
10

In accordance with Depra v. Dumlao,[18] this case must be remanded to the RTC which shall conduct the appropriate
proceedings to assess the respective values of the improvement and of the land, as well as the amounts of reasonable rentals
and indemnity, fix the terms of the lease if the parties so agree, and to determine other matters necessary for the proper
application of Article 448, in relation to Articles 546 and 548, of the Civil Code.
As to the liability of Vergon, petitioners failed to present sufficient evidence to show negligence on Vergons part.
Petitioners claim is obviously one (1) for tort, governed by Article 2176 of the Civil Code, which provides:
ART. 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no preexisting
contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this
Chapter. (Emphasis ours.)
Under this provision, it is the plaintiff who has to prove by a preponderance of evidence: (1) the damages suffered by
the plaintiff; (2) the fault or negligence of the defendant or some other person for whose act he must respond; and (3) the
connection of cause and effect between the fault or negligence and the damages incurred.[19] This the petitioners failed to do.
The President of Vergon signed the building permit as a precondition for its approval by the local government, but it did not
guarantee that petitioners were constructing the structure within the metes and bounds of petitioners lot. The signature of the
President of Vergon on the building permit merely proved that petitioners were authorized to make constructions within the
subdivision project of Vergon. And while petitioners acted in good faith in building their house on Lot No. 2-R, petitioners did
not show by what authority the agents or employees of Vergon were acting when they pointed to the lot where the
construction was made nor was petitioners claim on this matter corroborated by sufficient evidence.
One (1) last note on the award of damages. Considering that petitioners acted in good faith in building their house on
the subject property of the respondent-spouses, there is no basis for the award of moral damages to respondentspouses. Likewise, the Court deletes the award to Vergon of compensatory damages and attorneys fees for the litigation
expenses Vergon had incurred as such amounts were not specifically prayed for in its Answer to petitioners third-party
complaint. Under Article 2208[20] of the Civil Code, attorneys fees and expenses of litigation are recoverable only in the
concept of actual damages, not as moral damages nor judicial costs. Hence, such must be specifically prayed foras was not
done in this caseand may not be deemed incorporated within a general prayer for such other relief and remedy as this
court may deem just and equitable.[21] It must also be noted that aside from the following, the body of the trial courts decision
was devoid of any statement regarding attorneys fees. In Scott Consultants & Resource Development Corporation, Inc. v.
Court of Appeals,[22] we reiterated that attorneys fees are not to be awarded every time a party wins a suit. The power of the
court to award attorneys fees under Article 2208 of the Civil Code demands factual, legal, and equitable justification; its basis
cannot be left to speculation or conjecture. Where granted, the court must explicitly state in the body of the decision, and not
only in the dispositive portion thereof, the legal reason for the award of attorneys fees.
WHEREFORE, the Decision dated December 11, 2000 of the Court of Appeals in CA-G.R. CV No. 48109
is AFFIRMED WITH MODIFICATION. The award of moral damages in favor of respondent-spouses Jose and Fe Macabagdal
and the award of compensatory damages and attorneys fees to respondent Vergon Realty Investments Corporation
are DELETED. The case is REMANDED to the Regional Trial Court of Makati City, Branch 135, for further proceedings
consistent with the proper application of Articles 448, 546 and 548 of the Civil Code, as follows:
1.

The trial court shall determine:

a.

the present fair price of the respondent-spouses lot;

b.

the amount of the expenses spent by petitioners for the building of their house;

c.

the increase in value (plus value) which the said lot may have acquired by reason thereof; and
11

d.
2.

whether the value of said land is considerably more than that of the house built thereon.

After said amounts shall have been determined by competent evidence, the Regional Trial Court shall render judgment,

as follows:
a.

The trial court shall grant the respondent-spouses a period of fifteen (15) days within which to exercise their
option under Article 448 of the Civil Code, whether to appropriate the house as their own by paying to petitioners
either the amount of the expenses spent by petitioners for the building of the house, or the increase in value
(plus value) which the said lot may have acquired by reason thereof, or to oblige petitioners to pay the price of
said land. The amounts to be respectively paid by the respondent-spouses and petitioners, in accordance with
the option thus exercised by written notice of the other party and to the Court, shall be paid by the obligor within
fifteen (15) days from such notice of the option by tendering the amount to the Court in favor of the party entitled
to receive it;

b.

The trial court shall further order that if the respondent-spouses exercises the option to oblige petitioners to pay
the price of the land but the latter rejects such purchase because, as found by the trial court, the value of the
land is considerably more than that of the house, petitioners shall give written notice of such rejection to the
respondent-spouses and to the Court within fifteen (15) days from notice of the respondent-spouses option to
sell the land. In that event, the parties shall be given a period of fifteen (15) days from such notice of rejection
within which to agree upon the terms of the lease, and give the Court formal written notice of such agreement
and its provisos. If no agreement is reached by the parties, the trial court, within fifteen (15) days from and after
the termination of the said period fixed for negotiation, shall then fix the terms of the lease, payable within the
first five (5) days of each calendar month. The period for the forced lease shall not be more than two (2) years,
counted from the finality of the judgment, considering the long period of time since petitioners have occupied the
subject area. The rental thus fixed shall be increased by ten percent (10%) for the second year of the forced
lease. Petitioners shall not make any further constructions or improvements on the house. Upon expiration of the
two (2)-year period, or upon default by petitioners in the payment of rentals for two (2) consecutive months, the
respondent-spouses shall be entitled to terminate the forced lease, to recover their land, and to have the house
removed by petitioners or at the latters expense. The rentals herein provided shall be tendered by petitioners to
the Court for payment to the respondent-spouses, and such tender shall constitute evidence of whether or not
compliance was made within the period fixed by the Court.

c.

In any event, petitioners shall pay the respondent-spouses reasonable compensation for the occupancy of the
respondent-spouses land for the period counted from the year petitioners occupied the subject area, up to the
commencement date of the forced lease referred to in the preceding paragraph;

d.

The periods to be fixed by the trial court in its Decision shall be inextendible, and upon failure of the party
obliged to tender to the trial court the amount due to the obligee, the party entitled to such payment shall be
entitled to an order of execution for the enforcement of payment of the amount due and for compliance with such
other acts as may be required by the prestation due the obligee.

No costs.
SO ORDERED.

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