Republic of the Philippines

15th MUNICIPAL CIRCUIT TRIAL COURT

Second Judicial Region
Jones-San Agustin
Province of Isabela

ELEANOR F. GAPUSAN, Civil Case No. 266

TOMAS I. FAILMA, Jr., For: Ejectment under
ZORAIDA FAILMA GARCIA, Rule 70 of the Rules of
ESTELA FAILMA PONES and Court and Damages
JOSEPH LAZARUS FAILMA,
Plaintiffs,

-versus-

TRESTAN F. CALUYA, married to

BIVIANA IBANA, MERLITO LANO
married to LUALHATI CALUYA,
Defendants.
x------------------------------------------------x

POSITION PAPER
(FOR THE DEFENDANTS)

DEFENDANTS, through counsel, to the Honorable Court,

respectfully submit this Position Paper in support of the arguments in
the Answer and the documentary evidence attached therewith, thus:

PREFATORY STATEMENT

This is an ejectment suit filed under Rule 70 of the Rules of Court.

 FACTUAL
ANTECEDENTS

Defendants have been in open, continuous, exclusive, notorious

and adverse possession IN THE CONCEPT OF AN OWNER AND FOR
VALUE as early as 1971 over a portion of Lot 3663 situated in Linomot,
Jones, Isabela, covered by and described in OCT No. I-513 of the
Registry of Deeds of the Province of Isabela, registered in the name of
Bonifacio Failma. They derived their right of ownership and possession
from TOMAS FAILMA who ceded, sold, transferred and conveyed the
subject property for value in favor of TRESTAN CALUYA, one of the
herein defendants, as evidenced by an Acknowledgement Receipt dated
August 28, 1973 which is attached hereto as Exhibit “1” and Entry No.
294 dated November, 1971 of a Notarial Registry certified to by the
National Archives, copy of which is hereto attached as Exhibit “2”.

In a sudden turn of events, plaintiffs claim ownership of the entire

lot covered by OCT No. I-513, and anchored the same on their being the
children of TOMAS FAILMA, son of the primitive owner, BONIFACIO
FAILMA. Plaintiffs aver that their father merely allowed defendants
during his lifetime to occupy the lot in issue. On August 23, 2014,
plaintiffs demanded defendants to vacate the property but defendants
refused as they believe that they are the owners. Thus, the plaintiffs
filed the instant case for ejectment against the defendants.

The following issues were raised during the preliminary conference:

Whether defendants are entitled to the de facto possession of the

subject real property?;

Whether defendants have better right of possession over the

subject realty?; and

Whether the defendants are liable for damages.

NATURE OF AN ACTION FOR EJECTMENT

Section 1, Rule 70 of the Rules of Court provides:

 Section 1. Who may institute proceedings, and when.- Subject to
the provisions of the next succeeding section, a person deprived of the
possession of any land or building by force, intimidation, threat,
strategy, or stealth, or a lessor, vendor, vendee, or other person against
whom the possession of any land or building is withheld after the
expiration or termination of the right to hold possession, by virtue of
any contract, expressed or implied, or the legal representatives or
assigns of any such lessor, vendor, vendee, or other person, may, at any
time within one (1) year after such unlawful deprivation or withholding
of possession, bring an action in the proper Municipal Trial Court
against the person or persons unlawfully withholding or depriving of
possession, or any person or persons claiming under them, for the
restitution of such possession, together with damages and costs.

Forcible entry and unlawful detainer cases are two distinct actions
defined in the afore-cited provision. In Forcible Entry, one employs
force, intimidation, threat, strategy or stealth to deprive another of
physical possession of the land, (Montanez vs. Mendoza, 392 SCRA
541). Possession by the defendant of the subject property is unlawful
ab initio.

On the other hand, Unlawful Detainer involves the person’s

withholding from another of the possession of 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
(Republic vs. Luriz, 513 SCRA 140). Possession by the defendant of the
property is originally lawful but becomes illegal by virtue of the
termination of his right of possession under his contract with the
plaintiff, either expressed or implied, ( Tirona vs. Alejo, 367 SCRA 17).

In Go, Jr. vs. CA, 362 SCRA 755, it was adjudicated that tolerance
must be present right from the start of possession sought to be
recovered to be within the purview of unlawful detainer.

Basic is the rule that what determines the nature of the action and
what court has jurisdiction over it are the averments or allegations in
the complaint and the character of the remedy or relief sought. As in
the case of unlawful detainer, the permission or tolerance must be
present at the outset or at the beginning of the possession. If not, a
case of forcible entry is the proper remedy. The time or period
mandated by law should be complied with. Otherwise, prescription
steps into the picture (Notes and Cases on Ejectment, Igmidio Cuevas
Lat, p.1, 2005).

The nature of defendant’s entry into the land determines the

cause of action. If entry is illegal, it is Forcible Entry and the action must
be filed within one year from the date of unlawful intrusion. Otherwise,
the appropriate action is Unlawful Detainer and should be filed within
one year from the time possession by the defendant became illegal.

The one year period within which to bring an action for forcible
entry is reckoned from the date of actual entry to the land, (Gener vs.
De Leon, 367 SCRA 631). After the lapse of the one-year period, the
party dispossessed of a parcel of land can file either an accion
publiciana or accion reivindicatoria.

He who alleges must prove and the party having the onus
probandi must establish his case by preponderance of evidence.

DEFENDANTS’ POSITION AND ARGUMENTS

DEFENDANTS HAVE A BETTER RIGHT OF POSSESSION OVER THE

SUBJECT REALTY THAN THE PLAINTIFFS, AND ARE ENTITLED TO THE DE
FACTO POSSESSION OF THE LOT IN ISSUE.

The plaintiffs’ complaint for unlawful detainer is fundamentally

inadequate. There is practically no averment as to when and how
possession by tolerance of the defendants began. In their complaint,
the plaintiffs only made a general claim that the defendants possessed
the property upon their predecessor’s tolerance sans factual
substantiation. In Spouses Valdez, Jr. vs. CA, 523 Phil. 39 (2006), the
Supreme Court ruled that the failure of the complainants to allege key
jurisdictional facts constitutive of unlawful detainer is fatal and deprives
the MTCC of jurisdiction over the action.

The plaintiffs’ evidence inadequately proved their claim that they

have a case of unlawful detainer against the defendants. Plaintiffs’
allegation that their predecessor in interest, TOMAS FAILMA, uncle of
defendant TRISTAN CALUYA, merely allowed the latter to occupy the
land during his lifetime was not substantiated by any evidence. None of
the evidence of the plaintiffs support their claim that defendants’
possession of the land is merely by virtue of their tolerance. Plaintiffs
failed to aver and show as to how or when TOMAS FAILMA, their
predecessor, tolerated defendants’ possession of the land.
Consequently, there was no contract to speak of, whether expressed or
implied, between the defendants, on one hand, and the plaintiffs or
their predecessor, on the other that would qualify the defendants’
possession of the land as a case of unlawful detainer. Neither did the
plaintiffs allege that defendants took possession of the land through
force, intimidation, threat, strategy or stealth to make out a case of
forcible entry.

On the contrary, defendants’ claim that their possession of the

land which commenced as early as 1971 in the concept of an owner
was sufficiently established by their evidence particularly the
Acknowledgement Receipt dated August 23, 1973, wherein plaintiffs’
predecessors acknowledged receipt of the balance of TRISTAN CALUYA
as appearing in the Deed of Sale dated November 25, 1971 in full
satisfaction of the sale of a one (1) hectare portion of the land covered
by OCT No. I-513 (Exhibit “1”), and Entry No. 294 dated November,
1971 of a Notarial Registry certified to by the National Archives, copy of
which is hereto attached as Exhibit “2”.

Moreover, the letter of invitation of TOMAS FAILMA to defendant

TRISTAN CALUYA (hereto attached as Exhibit “3”) inviting the latter to
attend a conference regarding the subdivision of the lot covered by OCT
No. I-513 further bolsters defendants’ claim of possession in the
concept of an owner and negates the plaintiffs’ position that
defendants possession is by tolerance only of the plaintiffs.

Further, it is undisputed that defendants have been occupying the

land since 1971. So even assuming without admitting that the RTC
decision in Civil Case No. 24 – 539 had divested the defendants of their
ownership of the lot in issue, and affirmed plaintiffs’ ownership thereof,
the defendants cannot be ejected therefrom through the summary
action of ejectment. As held by the Supreme Court in Sarmiento vs. CA,
320 Phil. 146 (1995), 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 (1) year by resorting to a summary action of ejectment. At this
juncture, it is worthy to note that at the time of the filing of this case,
defendants had been in physical possession of the property for more or
less forty four (44) years.

Indeed, if the plaintiffs are the owners of the subject property and
they were unlawfully deprived of the real right of possession or
ownership thereof, they should present their claim before the RTC in an
accion publiciana or an accion reivindicatoria, and not before the
municipal trial court in a summary proceeding of unlawful detainer or
forcible entry.

Clearly, the plaintiffs’ evidence are not only inadequate to

substantiate their claim against the defendants. Their complaint failed
to make out a case of forcible entry. Hence, their complaint must
necessarily fail. And even assuming for the sake of argument that the
complaint alleges forcible entry, the same action is barred by
prescription based on the arguments posited at the outset.

THE PLAINTIFFS ARE LIABLE FOR DAMAGES

Defendants’ reputation in the community had been tainted by

reason of the plaintiffs’ baseless or unfounded allegations. Thus,
defendants are liable for moral damages.

In the interest of public good and to dissuade others from filing a

similar complaint, plaintiffs should pay exemplary damages.

Since defendants were compelled to secure the services of a

lawyer to protect their rights and interests, plaintiffs should be ordered
to pay the attorney’s fee and honorarium per court appearance
incurred by the defendants in the case at bar.

PRAYER

WHEREFORE, on the basis of all the foregoing, it is respectfully

prayed that this position paper be given due consideration in the
resolution of this case and that judgment be rendered in favor of the
defendants by DISMISSING the complaint for lack of merit, and to
award the defendants damages in such amount as the court may deem
reasonable.

Other reliefs that are just and equitable under the premises are
likewise prayed for.

Ilagan City for Jones, Isabela, July 22, 2015.

ATTY. RODERICK M. CRUZ

Counsel for the Defendants
Capitol Hills Subd.,
City of Ilagan, Isabela
Roll No. 46359
PTR No. PGI 5968029/03-03-2015
IBP Receipt No. 962910/1-09-2015
MCLE Compliance No. IV-0024734
Valid from 1-29-2015 until 04-14-2016
MCLE Compliance No. V-0005915
Valid from April 15, 2016 to April 14, 2019
E-mail Add: cruz_RoderickM@yahoo.com

VERIFICATION

We, TRISTAN F. CALUYA, BIVIANA IBANA-CALUYA, MERLISTO

LANO and LUALHATY CALUYA-LANO, all of legal age, Filipinos, married
and bonafide residents of Barangay Linomot, Jones, Isabela, under
oath, hereby depose and state as follows:

1. We are the defendants in the above-entitled Complaint;

2. We have caused the preparation and filing of the foregoing

Position Paper;
 3. We have read the contents thereof and the facts as stated
therein are true and correct and based on authentic records;

IN WITNESS WHEREOF, we have hereunto affixed our signatures

this 23rd day of July, 2015 at Echague, Isabela.

TRISTAN F. CALUYA BIVIANA IBANA-CALUYA

Affiant Affiant

MERLISTO LANO LUALHATY CALUYA-LANO

Affiant Affiant

SUBSCRIBED AND SWORN to before me this 23rd day of July, 2015

at Echague, Isabela. I hereby certify that I personally examined the
affiants and I am satisfied that they have read and understood the
contents of their Position Paper and they attested that the same is a
product of their own free will. Affiants have individually exhibited to me
their Identification Card bearing their picture and signature as
competent proof of their identity.

Doc No._____;
Page No.____;
Book No.____;
Series of 2015.

Copy furnished via registered mail:

ATTY. ABRAHAM B. SABLE

Counsel for the Plaintiff
#49 VMG Bldg., City Road,
Calao West, Santiago City,
Isabela
EXPLANATION: A copy of the foregoing Position Paper was duly
furnished Atty. Abraham B. Sable in his given address via registered mail
pursuant to Section 7, Rule 13 of the Rules of Court due to distance,
time and expense to effect personal service.

RODERICK M CRUZ