G.R. No. 119730 September 2, 1999 RODOLFO NOCED vs. COURT OF A EALS !

"# AURORA AR$%&O D%RECTO FACTS' In June 1981, the heirs of the late Celestino Arbizo, namely: Aurora (daughter), Rodolfo (grandson) !aria ("ido"), e#tra$udi%ially settled a &ar%el of land ('ot 11(1) among themsel)es* +n the same day, Aurora donated a &art of her share to her ne&he", Rodolfo* ,o"e)er, another e#tra$udial settlement-&artition "as e#e%uted and the land "as &artitioned among the heirs: Aurora-1./, Rodolfo-1./, !aria-0./* 1hereafter, Aurora %onstu%ted huts and fen%e around the area allotted to her, "hile Rodolfo o%%u&ied the area donated to him by his aunt, Aurora* 2ut sometime in 198/, Rodolfo remo)ed the fen%es around Aurora3s area and o%%u&ied the huts built therein "ithout the %onsent of the latter* Aurora demanded from Rodolfo to )a%ate the &remises, but he refused* ,en%e, Aurora filed a %om&laint for the re%o)ery and &ossession of the said &ro&erty and the res%ission.annulment of the donation* 4uring the trial, the %ourt designated an engineer to determine and %ondu%t a sur)ey &lan in the said &ar%el of land* 1he engineer "as able to determine the &ro&ortions to be alloted to ea%h of the heir and submitted a sur)ey &lan sho"ing &ortions of ea%h heir* 1hereafter, the lo"er %ourt de%ided in Aurora3s fa)or, the de%ision of "hi%h "as affirmed by the Court of A&&eals* ,en%e this &etition for re)ie" on %ertiorari by Rodolfo* %SSUE' 1* Rodolfo argues that he did not usur& the &ro&erty of Aurora sin%e, to date, the metes and bounds of the &ar%el of land left by their &rede%essor in interest, Celestino Arbizo, are still undetermined sin%e no final determination as to the e#a%t areas &ro&erly &ertaining to the &arties herein5 hen%e they are still %onsidered as %o-o"ners thereof* (* Rodolfo %ontends that granting re)o%ation is &ro&er, the right to enfor%e the same had already &res%ribed sin%e as admitted by Aurora, Rodolfo usur&ed her &ro&erty in the first "ee6 of 7e&tember 198/ "hile the %om&laint for re)o%ation "as filed on 7e&tember 18, 1988, thus more than one (1) year had &assed from the alleged usur&ation by Rodolfo of Aurora3s share in 'ot 11(1* RUL%NG' In this %ase the sour%e of %o-o"nershi& among the heirs "as intestate su%%ession* 9here there are t"o or more heirs, the "hole estate of the de%edent is, before its &artition, o"ned in %ommon by su%h heirs sub$e%t to the &ayment of debts of the de%eased* :artition, in general, is the se&aration, di)ision and assignment of a thing held in %ommon among those to "hom it may belong* 1he &ur&ose of &artition is to &ut an end to %o-o"nershi&* It see6s a se)eran%e of the indi)idual interest of ea%h %o-o"ner, )esting in ea%h a sole estate in s&e%ifi% &ro&erty and gi)ing to ea%h one a right to en$oy his estate "ithout su&er)ision or interferen%e from the other* And one "ay of effe%ting a &artition of the de%edent3s estate is by the heirs themsel)es e#tra$udi%ially* 1he heirs of the late Celestino Arbizo namely !aria Arbizo, Aurora A* 4ire%to (&ri)ate res&ondent) and Rodolfo ;o%eda (&etitioner) entered into an e#tra$udi%ial settlement of the estate on August 1<, 1981 and agreed to ad$udi%ate among themsel)es the &ro&erty left by their &rede%essor-in-interest* Also, the sur)ey &lan submitted by the engineer designated by the lo"er %ourt had sho"n s&e%ifi%ally the delineation of the areas allotted to ea%h heir* 1here is no %o-o"nershi& "here &ortion o"ned is %on%retely determined and identifiable, though not te%hni%ally des%ribed, or that said &ortions are still embra%ed in one and the same %ertifi%ate of title does not ma6e said &ortions less determinable or identifiable, or distinguishable, one from the other, nor that dominion o)er ea%h &ortion less e#%lusi)e, in their res&e%ti)e o"ners* A &artition legally made %onfers u&on ea%h heir the e#%lusi)e o"nershi& of the &ro&erty ad$udi%ated to him* Rodolfo3s argument = sin%e there "as no effe%ti)e and real &artition of the sub$e%t lot there e#ists no basis for the %harge of usur&ation and hen%e there is also no basis for finding ingratitude against him = is "ithout merit* Rodolfo3s a%t of o%%u&ying the &ortion &ertaining to Aurora "ithout the latter3s 6no"ledge and %onsent is an a%t of usur&ation "hi%h is an offense against the &ro&erty of the donor and %onsidered as an a%t of ingratitude of a donee against the donor* 1he la" does not re>uire %on)i%tion of the donee5 it is enough that the offense be &ro)ed in the a%tion for re)o%ation* Art* <89 of the ;e" Ci)il Code states that: ? The action granted to the donor by reason of ingratitude cannot be renounced in advance. This action prescribes within one year to be counted from the time the donor had knowledge of the fact and it was possible for him to bring the action*? As e#&ressly stated, the donor must file the a%tion to re)o6e his donation "ithin one year from the time he had 6no"ledge of the ingratitude of the donee* Also, it must be sho"n that it "as &ossible for the donor to institute the said a%tion "ithin the same &eriod* 1he %on%urren%e of these t"o re>uisites must be sho"n by Rodolfo in order to bar the &resent a%tion* Rodolfo failed to do so* ,e re%6oned the one year &res%ri&ti)e &eriod from the o%%urren%e of the usur&ation of the &ro&erty of Aurora in the first "ee6 of 7e&tember, 198/, and not from the time the latter had the 6no"ledge of the usur&ation* !oreo)er, Rodolfo failed to &ro)e that at the time Aurora a%>uired 6no"ledge of his usur&ation, it "as &ossible for Aurora to institute an a%tion for re)o%ation of her donation* 1he a%tion to re)o6e by reason of ingratitude &res%ribes "ithin one (1) year to be %ounted from the time (a) the donor had 6no"ledge of the fa%t5 (b) &ro)ided that it "as &ossible for him to bring the a%tion* It is in%umbent u&on &etitioner to sho" &roof of the %on%urren%e of these t"o %onditions in order that the one (1) year &eriod for bringing the a%tion be %onsidered to ha)e already &res%ribed* ;o %om&etent &roof "as addu%ed by &etitioner to &ro)e his allegation* In Ci)il Cases, the &arty ha)ing the burden of &roof must establish his %ase by &re&onderan%e of e)iden%e* ,e "ho alleges a fa%t has the burden of &ro)ing it and a mere allegation is not e)iden%e*