Republic of the Philippines

SUPREME COURT

Manila

SECOND DIVISION

G.R. No. 177637 July 26, 2010

DR. DIOSCORO CARBONILLA, Petitioner,

vs.

MARCELO ABIERA and MARICRIS ABIERA PAREDES, SUBSTITUTED BY HER HEIRS, Respondents.

DECISION

NACHURA, J.:

Assailed in this petition for review are the Decision1 of the Court of Appeals (CA) dated September 18,
2006 and the Resolution dated April 17, 2007, which dismissed petitioner’s complaint for ejectment
against respondents.

The case arose from the following antecedents:

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

To corroborate his claim, petitioner presented copies of Transfer Certificate of Title (TCT) No. T-3784;
Deed of Extrajudicial Settlement of Estate (Residential Building) with Waiver and Quitclaim of Ownership
dated November 10, 2002, executed by the heirs of Jovita Yanto Garciano; Tax Declaration (TD) with ARP
No. 07020-000019; and Demand Letter dated November 20, 2002. TCT No. T-3784 shows that the land
was originally registered on January 30, 1968 in the name of Diosdado Carbonilla, petitioner’s father,
under Original Certificate of Title No. 185.

In their defense, respondents vehemently denied petitioner’s allegation that they possessed the building
by mere tolerance of the previous owners. Instead, they asserted that they occupied the building as
owners, having inherited the same from Alfredo Abiera and Teodorica Capistrano, respondent Marcelo’s
parents and respondent Maricris’ grandparents. They maintained that they have been in possession of
the building since 1960, but it has not been declared for taxation purposes. As for the subject land,
respondents claimed that they inherited the same from Francisco Plasabas, grandfather of Alfredo
Abiera. They pointed out that the land had, in fact, been declared for taxation purposes in the name of
Francisco Plasabas under TD No. 4676, before the Second World War. This TD was later cancelled by TD
No. 8735 in 1948, TD No. 14363 in 1958, and TD No. 16182 in 1963. Respondents averred that the
building was previously a garage-like structure but, in 1977, Alfredo Abiera and Teodorica Capistrano
repaired and remodeled it, for which reason, they obtained a building permit on April 11, 1977 from the
then Municipality of Maasin. Finally, respondents contended that the case should be dismissed for
failure to implead as defendants respondent Marcelo’s siblings, who are co-heirs of the subject
properties.3 Respondents presented copies of the two TDs in the name of Francisco Plasabas and the
Building Permit dated April 11, 1977.

The MTCC decided the case in favor of respondents. It opined that petitioner’s claim of ownership over
the subject parcel of land was not successfully rebutted by respondents; hence, petitioner’s ownership
of the same was deemed established.4 However, with respect to the building, the court declared
respondents as having the better right to its material possession in light of petitioner’s failure to refute
respondents’ claim that their predecessors had been in prior possession of the building since 1960 and
that they have continued such possession up to the present.5 In so ruling, the court applied Art. 5466 of
the Civil Code which allows the possessor in good faith to retain the property until he is reimbursed for
necessary expenses. Thus, in its decision dated March 15, 2004, the MTCC pronounced:

WHEREFORE, foregoing premises considered and the collated evidences at hand [have] preponderantly
established, JUDGMENT is hereby rendered in favor of the defendants DECLARING the defendants to
have the better rights of (material) possession to the assailed building and deemed as possessors in
good faith and are legally entitled to its possession and occupancy.
The plaintiff judicially affirmed as the land owner is enjoined to respect the rights of the defendants
pursuant to the provisions of Art. 546, Chapter III, New Civil Code of the Philippines[, w]ithout prejudice
to the provisions of Arts. 547 and 548, New Civil Code of the Philippines. No pronouncement as to costs
as defendants’ predecessors-in-interest are deemed possessors and builders in good faith.

SO ORDERED.7

Petitioner elevated the case to the Regional Trial Court (RTC). On July 12, 2004, the RTC reversed the
MTCC decision. The RTC agreed with the MTCC that the land is owned by petitioner. The two courts
differed, however, in their conclusion with respect to the building. The RTC placed the burden upon
respondents to prove their claim that they built it prior to petitioner’s acquisition of the land, which
burden, the court found, respondents failed to discharge. The RTC held that, either way—whether the
building was constructed before or after petitioner acquired ownership of the land—petitioner, as
owner of the land, would have every right to evict respondents from the land. As theorized by the RTC, if
the building was erected before petitioner or his predecessors acquired ownership of the land, then
Article 4458 of the Civil Code would apply. Thus, petitioner, as owner of the land, would be deemed the
owner of the building standing thereon, considering that, when ownership of the land was transferred
to him, there was no reservation by the original owner that the building was not included in the transfer.
On the other hand, if the building was constructed after petitioner became the owner of the land, it is
with more reason that petitioner has the right to evict respondents from the land. The dispositive
portion of the RTC decision reads:

WHEREFORE, premises considered, judgment is hereby rendered

1. Reversing the decision of the court a quo;

2. Ordering defendants to immediately vacate the residential house/building subject of this litigation;

3. Ordering defendants to pay attorney’s fee in the amount of ₱30,000.00; and

4. To pay the cost of the suit.

SO ORDERED.9
Respondents then filed a petition for review with the CA. Finding no evidence to prove that
respondents’ possession of the building was by mere tolerance, the CA reversed the RTC decision and
ordered the dismissal of petitioner’s complaint. Because of this, the CA, following this Court’s ruling in
Ten Forty Realty and Development Corporation v. Cruz, categorized the complaint as one for forcible
entry. It then proceeded to declare that the action had prescribed since the one-year period for filing
the forcible entry case had already lapsed. The dispositive portion of the CA Decision dated September
18, 2006 reads:

WHEREFORE, premises considered, the assailed decision promulgated on July 12, 2004 of Branch 25 of
the Regional Trial Court (RTC), Maasin City, Southern Leyte in Civil Case No. R-3382 is hereby declared
NULL and VOID for failure of the plaintiff (herein respondent) to prove that the case at bar is for
unlawful detainer or forcible entry. Accordingly, the instant case is hereby DISMISSED.

xxxx

SO ORDERED.10

Petitioner sought reconsideration of the Decision, but the CA denied petitioner’s motion for lack of
merit.11 Hence, petitioner came to this Court through a petition for review on certiorari.

On September 3, 2007, respondents’ counsel informed this Court that respondent, Maricris Abiera
Paredes, died on June 25, 2006 of asphyxia due to hanging, and moved that the latter’s heirs be allowed
to substitute for the deceased.12 In the Resolution13 dated November 14, 2007, the Court granted the
motion.

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

The petition has no merit.

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

Without a doubt, the registered owner of real property is entitled to its possession. However, the owner
cannot simply wrest possession thereof from whoever is in actual occupation of the property. To
recover possession, he must resort to the proper judicial remedy and, once he chooses what action to
file, he is required to satisfy the conditions necessary for such action to prosper.

In the present case, petitioner opted to file an ejectment case against respondents. Ejectment cases—
forcible entry and unlawful detainer—are summary proceedings designed to provide expeditious means
to protect actual possession or the right to possession of the property involved.14 The only question
that the courts resolve in ejectment proceedings is: who is entitled to the physical possession of the
premises, that is, to the possession de facto and not to the possession de jure. It does not even matter if
a party’s title to the property is questionable.15 For this reason, an ejectment case will not necessarily
be decided in favor of one who has presented proof of ownership of the subject property. Key
jurisdictional facts constitutive of the particular ejectment case filed must be averred in the complaint
and sufficiently proven.

The statements in the complaint that respondents’ possession of the building was by mere tolerance of
petitioner clearly make out a case for unlawful detainer. Unlawful detainer involves the person’s
withholding from another of the possession of the real property to which the latter is entitled, after the
expiration or termination of the former’s right to hold possession under the contract, either expressed
or implied.16

A requisite for a valid cause of action in an unlawful detainer case is that possession must be originally
lawful, and such possession must have turned unlawful only upon the expiration of the right to
possess.17 It must be shown that the possession was initially lawful; hence, the basis of such lawful
possession must be established. If, as in this case, the claim is that such possession is by mere tolerance
of the plaintiff, the acts of tolerance must be proved.

Petitioner failed to prove that respondents’ possession was based on his alleged tolerance. He did not
offer any evidence or even only an affidavit of the Garcianos attesting that they tolerated respondents’
entry to and occupation of the subject properties. A bare allegation of tolerance will not suffice. Plaintiff
must, at least, show overt acts indicative of his or his predecessor’s permission to occupy the subject
property. Thus, we must agree with the CA when it said:
A careful scrutiny of the records revealed that herein respondent miserably failed to prove his claim that
petitioners’ possession of the subject building was by mere tolerance as alleged in the complaint.
Tolerance must be [present] right from the start of possession sought to be recovered to be within the
purview of unlawful detainer. Mere tolerance always carries with it "permission" and not merely silence
or inaction for silence or inaction is negligence, not tolerance.18

In addition, plaintiff must also show that the supposed acts of tolerance have been present right from
the very start of the possession—from entry to the property. Otherwise, if the possession was unlawful
from the start, an action for unlawful detainer would be an improper remedy.19 Notably, no mention
was made in the complaint of how entry by respondents was effected or how and when dispossession
started. Neither was there any evidence showing such details.1avvphi1

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

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

SO ORDERED.

ANTONIO EDUARDO B. NACHURA

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO

Associate Justice

Chairperson

DIOSDADO M. PERALTA
Associate Justice ROBERTO A. ABAD

Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.

ANTONIO T. CARPIO

Associate Justice

Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify
that the conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONA

Chief Justice

Footnotes

1 Penned by Executive Justice Arsenio J. Magpale, with Associate Justices Marlene Gonzales-Sison and
Antonio L. Villamor, concurring; rollo, pp. 85-95.

2 Id. at 17-19.
3 Id. at 20-24.

4 Id. at 29 and 31.

5 Id. at 29-30.

6 Art. 546 of the Civil Code reads in full:

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.

7 Rollo, pp. 31-32.

8 Art. 445 of the Civil Code reads in full:

ART. 445. Whatever is built, planted or sown on the land of another and the improvements or repairs
made thereon, belong to the owner of the land, subject to the provisions of the following articles.

9 Rollo, pp. 40-41.

10 Supra note 1, at 94-95.

11 Rollo, p. 105.

12 Id. at 113-115.
13 Id. at 130.

14 Go, Jr. v. Court of Appeals, 415 Phil. 172, 183-184 (2001).

15 David v. Cordova, 502 Phil. 626 (2005).

16 Republic v. Luriz, G.R. No. 158992, January 26, 2007, 513 SCRA 140, 152-153.

17 Spouses Macasaet v. Spouses Macasaet, 482 Phil. 853 (2004).

18 Rollo, p. 91.

19 Valdez, Jr. v. Court of Appeals, G.R. No. 132424, May 4, 2006, 489 SCRA 369, 377.

20 Asis v. Asis Vda. de Guevarra, G.R. No. 167554, February 26, 2008, 546 SCRA 580, 583.

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