G.R. No. 128338 March 28, 2005 10 October 1994, found that Lots Nos.
10 October 1994, found that Lots Nos. 2587 and 2592 were owned in common by
TINING RESUENA, ALEJANDRA GARAY, LORNA RESUENA,
ELEUTERIO RESUENA, EUTIQUIA ROSARIO and UNISIMA
RESUENA, Petitioner,
vs.
HON. COURT OF APPEALS, 11th DIVISION and JUANITO BORROMEO,
SR., Respondents.
DECISION
TINGA, J.:
This is a Rule 45 Petition for Review on Certiorari of the Decision1 of the Court of
Appeals affirming that of the Regional Trial Court (RTC) of Cebu, 2 which in turn
reversed that of the Metropolitan Trial Court (mtc) of Talisay, Cebu. 3
The facts are as follows:
Private respondent, the late Juanito Borromeo, Sr.4 (hereinafter, respondent), is the
co-owner and overseer of certain parcels of land located in Pooc, Talisay, Cebu,
designated as Lots Nos. 2587 and 2592 of the Talisay-Manglanilla Estate.
Respondent owns six-eighths (6/8) of Lot No. 2587 while the late spouses Inocencio
Bascon and Basilisa Maneja (Spouses Bascon) own two-eights (2/8) thereof. On the
other hand, Lot No. 2592 is owned in common by respondent and the heirs of one
Nicolas Maneja. However, the proportion of their undivided shares was not
determined a quo.
Prior to the institution of the present action, petitioners Tining Resuena, Alejandra
Garay, Lorna Resuena, Eleuterio Resuena, and Unisima Resuena resided in the upper
portion of Lot No. 2587, allegedly under the acquiescence of the Spouses Bascon
and their heir, Andres Bascon. On the other hand, petitioner Eutiquia Rosario
occupied a portion of Lot No. 2592, allegedly with the permission of the heirs of
Nicolas Maneja, one of the original co-owners of Lot No. 2587. Respondent claims
that all petitioners have occupied portions of the subject property by virtue of his
own liberality.
Respondent developed portions of Lots Nos. 2587 and 2592 occupied by him into a
resort known as the Borromeo Beach Resort. In his desire to expand and extend the
facilities of the resort that he established on the subject properties, respondent
demanded that petitioners vacate the property. Petitioners, however, refused to
vacate their homes.
On 16 February 1994, respondent filed a Complaint5 for ejectment with the MTC
against the petitioners. After a summary proceeding, the MTC, in a Decision6 dated
respondent with other persons. The MTC ruled that respondent did not have a
preferential right of possession over the portions occupied by petitioners, since Lots
Nos. 2587 and 2592 were not yet partitioned nor the disputed portions assigned to
respondent as his determinate share. Thus, the MTC held that respondent had no
right to evict petitioners therefrom. Consequently, respondent’s Complaint was
dismissed.
Notably, the MTC held that respondent and the spouses Bascon were the owners in
common of Lot No. 2587 and their respective shares had not yet been determined by
partition as proven by a testimony given by respondent in Civil Case No. R-
14600, viz:
Q. And the participation there of Inocencio Bascon is 2/8 of the said parcel
of land?
A. Yes sir.
Q. And until the present that parcel of land is undivided?
A. It is not yet partitioned, but during the time of Basilisa Maneja we had
already made some indications of the portions that we came to occupy.
Q. That is the parcel of land where you have your beach resort?
A. Yes, sir; and that was our agreement, verbally, that with respect to the
portion of the land towards the sea-shore it will be my share and that
portion of the land towards the upper part will be theirs." 7
On appeal, the RTC reversed the Decision of the MTC. It held that Article 487 of the
Civil Code, which allows any one of the co-owners to bring an action in ejectment,
may successfully be invoked by the respondent because, in a sense, a co-owner is the
owner and possessor of the whole, and that the suit for ejectment is deemed to be
instituted for the benefit of all co-owners.8 The RTC also ruled that assuming
petitioners were authorized to occupy a portion of the co-owned property, they could
resume this occupation when the properties shall have been partitioned and allocated
to the ones who gave them permission to reside therein. It thus held:
WHEREFORE, judgment of the lower court is hereby reversed and the
defendants are hereby directed to vacate the premises in question without
prejudice to their going back to the land after partition shall have been
effected by the coheirs and/or co-owners among themselves but to the
specific portion or portions adjudicated to the person or persons who
allegedly authorized them to occupy their portions by tolerance. 9
The Court of Appeals affirmed the Decision of the RTC; hence, this petition which
involves the following assignment of errors:10
1. That with grave abuse of discretion, amounting to excess of jurisdiction,
the honorable eleventh division of the court of appeals erred in NOT
 APPLYING and/or in NOT DECLARING private respondent juanito
borromeo estopped in filing this ejectment case against the herein six (6)
petitioners.
2. That with grave abuse of discretion, the honorable eleventh division of
the court of appeals erred in incorrectly applying the statute of frauds,
considering that the verbal agreement entered into by and between spouses
inocencio bascon and basilisa maneja on the one hand and juanito borromeo
on the other more than twenty (20) years ago today, was already an
EXECUTED CONTRACT.
3. That with grave abuse of discretion, amounting to excess of jurisdiction,
the honorable eleventh division of the court of appeals erred in ignoring
outright article 493 of the new civil code of the philippines, considering that
the six (6) petitioners are only ASSIGNEES, pure and simple, of co-owners
spouses ignacio bascon and basilisa maneja and/or andres bascon, the
adopted son of the said spouses.
4. That granting arguendo that the herein six (6) petitioners have to be
ejected, the eleventh division of the court of appeals erred in NOT
remanding this case to the court of origin for the reception of evidence for
damages, pursuant to and in accordance with art. 546, new civil code.
The petition cannot prosper.
At the outset it must be stated that petitioners ground their petition on respondent’s
testimony in Civil Case No. R-14600 that he had agreed with co-owner, Basilisa
Maneja, on the portions they each were to occupy in Lot No. 2587 prior to the
partition of the property. However, respondent’s testimony and, consequently, the
agreement alluded to therein pertains solely to Lot No. 2587—which, admittedly, all
of petitioners occupy, save for Eutiquia Rosario who occupies Lot No. 2592. No
argument was presented in this petition as regards the latter’s claim. Having no basis
to review Eutiquia Rosario’s claim to be allowed to continue in her occupation of
Lot No. 2592, this Court maintains the holding of the RTC on this matter, as
affirmed by the Court of Appeals, that respondent has the right to eject petitioner
Eutiquia Rosario from Lot No. 2592.
With regard to the other five (5) petitioners, the Court notes that their first three
assignments of errors are interrelated and built on each other. Petitioners allege that
respondent’s testimony in Civil Case No. R-14600, expressing that the upper two-
eighths (2/8) portion of Lot No. 2587 would be occupied by Basilisa Maneja,
constituting as it does a waiver of said portion, has estopped respondent from
claiming the portion. Basilisa Maneja and her husband allegedly relied on this
agreement when the spouses assigned the upper portion of Lot No. 2587 to
petitioners. Moreover, petitioners claim that their occupation of the upper portion of
Lot No. 2587 had consummated the verbal agreement between respondent and
Basilisa Maneja and brought agreement beyond the purview of the Statute of Frauds.
A careful perusal of the foregoing issues reveals that petitioners assumed the
following as proven facts: (1) respondent had indicated to Basilisa Maneja the
portions they were to occupy in Lot No. 2587; and (2) the Spouses Bascon assigned
to petitioners their portions of Lot No. 2587. By claiming these as the bases for their
assignment of errors, petitioners in essence are raising questions of fact.11
The issues raised by petitioners on the application of estoppel, statute of frauds, and
the assignment of properties owned in common in their favor, while ostensibly
raising questions of law, invite this Court to rule on questions of fact. This runs
counter to the settled rule that only questions of law may be raised in a petition for
review before the Court and the same must be distinctly set forth.12
It is not the function of this Court to weigh anew the evidence already passed upon
by the Court of Appeals for such evidence is deemed final and conclusive and may
not be reviewed on appeal. A departure from the general rule may be warranted,
among others, where the findings of fact of the Court of Appeals are contrary to the
findings and conclusions of the trial court, or when the same is unsupported by the
evidence on record.13
In the instant case, the RTC and the Court of Appeals rendered judgment merely on
questions of law as applied to the facts as determined by the MTC. Consequently this
Court must proceed on the same set of facts without assuming, as petitioners have
done, the veracity of claims which have been considered, but not accepted as facts,
by the courts below.
Guided by the foregoing, this Court finds in this case that filtered of the muddle from
petitioners’ assignment of errors, it is unmistakable that respondent has a right to
eject the petitioners from Lot No. 2587.
Article 487 of the Civil Code, which provides simply that "[a]ny one of the co-
owners may bring an action in ejectment," is a categorical and an unqualified
authority in favor of respondent to evict petitioners from the portions of Lot. No.
2587.
This provision is a departure from Palarca v. Baguisi,14 which held that an action for
ejectment must be brought by all the co-owners. Thus, a co-owner may bring an
action to exercise and protect the rights of all. When the action is brought by one co-
owner for the benefit of all, a favorable decision will benefit them; but an adverse
decision cannot prejudice their rights.15
Respondent’s action for ejectment against petitioners is deemed to be instituted for
the benefit of all co-owners of the property16 since petitioners were not able to prove
that they are authorized to occupy the same.
Petitioners’ lack of authority to occupy the properties, coupled with respondent’s
right under Article 487, clearly settles respondent’s prerogative to eject petitioners
from Lot No. 2587. Time and again, this Court has ruled that persons who occupy
the land of another at the latter's tolerance or permission, without any contract
between them, are necessarily bound by an implied promise that they will vacate the
same upon demand, failing in which a summary action for ejectment is the proper
remedy against them.17
Petitioners pose the strange claim that respondent had estopped himself from filing
an ejectment case against petitioners by his aforequoted testimony in Civil Case No.
R-14600. Such testimony is irrelevant to the case at bar, as it does nothing to
strengthen the claim of petitioners that they had a right to occupy the properties. This
testimony merely indicates that there might have been an agreement between the
Spouses Bascon and Borromeo as to which of them would occupy what portion of
Lot No. 2587. Yet this averment hardly establishes a definitive partition, or
moreover, any right of petitioners to dwell in any portion of Lot No. 2587. Besides,
"[e]stoppel is effective only as between the parties thereto or their successors in
interest;" thus, only the spouses Bascon or their successors in interest may invoke
such "estoppel." A stranger to a transaction is neither bound by, nor in a position to
take advantage of, an estoppel arising therefrom.18
For the same reason, it is of no moment whether indeed, as petitioners claim, there
was a verbal contract between Basilisa Maneja and Borromeo when the latter
indicated the portions they each were to occupy in Lot No. 2587. Such verbal
contract, assuming there was one, does not detract from the fact that the common
ownership over Lot No. 2587 remained inchoate and undivided, thus casting doubt
and rendering purely speculative any claim that the Spouses Bascon somehow had
the capacity to assign or transmit determinate portions of the property to petitioners.
Thus, in order that the petition may acquire any whiff of merit, petitioners are
obliged to establish a legal basis for their continued occupancy of the properties. The
mere tolerance of one of the co-owners, assuming that there was such, does not
suffice to establish such right. Tolerance in itself does not bear any legal fruit, and it
can easily be supplanted by a sudden change of heart on the part of the owner.
Petitioners have not adduced any convincing evidence that they have somehow
become successors-in-interest of the Spouses Bascon, or any of the owners of Lot
No. 2587.
Indeed, there is no writing presented to evidence any claim of ownership or right to
occupancy to the subject properties. There is no lease contract that would vest on
petitioners the right to stay on the property. As discussed by the Court of
Appeals,19 Article 1358 of the Civil Code provides that acts which have for their
object the creation, transmission, modification or extinguishment of real rights over
immovable property must appear in a public instrument. How then can this Court
accept the claim of petitioners that they have a right to stay on the subject properties,
absent any document which indubitably establishes such right? Assuming that there
was any verbal agreement between petitioners and any of the owners of the subject
lots, Article 1358 grants a coercive power to the parties by which they can
reciprocally compel the documentation of the agreement.20
Thus, the appellate court correctly appreciated the absence of any document or any
occupancy right of petitioners as a negation of their claim that they were allowed by
the Spouses Bascon to construct their houses thereon and to stay thereon until further
notice. On this note, this Court will no longer belabor petitioners’ allegation that
their occupation of Lot No. 2587 is justified pursuant to the alleged but unproven
permission of the Spouses Bascon.
All six (6) petitioners claim the right to be reimbursed "necessary expenses" for the
cost of constructing their houses in accordance with Article 546 of the Civil
Code.21 It is well-settled that while the Article allows full reimbursement of useful
improvements and retention of the premises until reimbursement is made, applies
only to a possessor in good faith, i.e., one who builds on land with the belief that he
is the owner thereof. Verily, persons whose occupation of a realty is by sheer
tolerance of its owners are not possessors in good faith. 22
The lower courts have made a common factual finding that petitioners are occupying
portions of Lots No. 2587 and 2592 by mere tolerance. Thus, petitioners have no
right to get reimbursed for the expenses they incurred in erecting their houses
thereon.
WHEREFORE, premises considered, the Petition is DENIED and the Decision of
the Court of Appeals AFFIRMED. Costs against petitioners.
SO ORDERED.
G.R. No. 187987 November 26, 2014
VICENTE TORRES, JR., CARLOS VELEZ, AND THE HEIRS OF
MARIANO VELEZ, NAMELY: ANITA CHIONG VELEZ, ROBERT OSCAR
CHIONG VELEZ, SARAH JEAN CHIONG VELEZ AND TED CHIONG
VELEZ, Petitioners,
vs.
LORENZO LAPINID AND JESUS VELEZ, Respondents.
DECISION
PEREZ, J.:
This is a Petition for Review on Certiorari1 under Rule 45 of the Rules of Court filed
by the petitioners assailing the 30 January 2009 Decision2 and 14 May 2009
Resolution3 of the Twentieth Division of the Corni of Appeals in CA-G.R. CV No.
02390, affirming the 15 October 2007 Decision4 of the Regional Trial Court of Cebu
City (RTC Cebu City) which dismissed the complaint for the declaration of nullity of
deed of sale against respondent Lorenzo Lapinid (Lapinid).
The facts as reviewed are the following:
On 4 February 2006, Vicente V. Torres, Jr. (Vicente), Mariano Velez (Mariano) 5 and
Carlos Velez (petitioners) filed a Complaint6 before RTC Cebu City praying for the
nullification of the sale of real property by respondent Jesus Velez (Jesus) in favor of
Lapinid; the recovery of possession and ownership of the property; and the payment
of damages.
Petitioners alleged in their complaint that they, including Jesus, are co-owners of
several parcels of land including the disputed Lot. No. 4389 7 located at Cogon,
Carcar, Cebu. Sometime in 1993, Jesus filed an action for partition of the parcels of
land against the petitioners and other co-owners before Branch 21 of RTC Cebu
City. On 13 August 2001, a judgment was rendered based on a compromise
agreement signed by the parties wherein they agreed that Jesus, Mariano and Vicente
were jointly authorized to sell the said properties and receive the proceeds thereof
and distribute them to all the co-owners. However, the agreement was later amended
to exclude Jesus as an authorized seller. Pursuant totheir mandate, the petitioners
inspected the property and discovered that Lapinid was occupying a specific portion
of the 3000 square meters of Lot No. 4389 by virtue of a deed of sale executed by
Jesus in favor of Lapinid. It was pointed out by petitioner that as a consequence of
what they discovered, a forcible entry case was filed against Lapinid.
The petitioners prayed that the deed of sale be declared null and void arguing that the
sale of a definite portion of a co-owned property without notice to the other co-
owners is without force and effect. Further, the complainants prayed for payment of
rental fees amounting to ₱1,000.00 per month from January 2004 or from the time of
deprivation of property in addition to attorney’s fees and litigation expenses.
Answering the allegations, Jesus admitted that there was a partition case between him and the
petitioners filed in 1993 involvingseveral parcels of land including the contested Lot No.
4389. However, he insisted that as early as 6 November 1997, a motion 8 was signed by the
co-owners (including the petitioners) wherein Lot No. 4389 was agreed to be adjudicated to
the co-owners belonging to the group of Jesus and the other lots be divided to the other co-
owners belonging to the group of Torres. Jesus further alleged that even prior to the partition
and motion, several coowners in his group had already sold their shares to him in various dates
of 1985, 1990 and 2004.9 Thus, when the motion was filed and signed by the parties on 6
November 1997, his rights asa majority co-owner (73%) of Lot No. 4389 became
consolidated. Jesus averred that it was unnecessary to give notice of the sale as the lot was
already adjudicated in his favor. He clarified that he only agreed with the 2001 Compromise
Agreement believing that it only pertained to the remaining parcels of land excluding Lot No.
4389.10
On his part, Lapinid admitted that a deed of sale was entered into between him and Jesus
pertaining to a parcel of land with an area of 3000 square meters. However, he insistedon the
validity of sale since Jesus showed him several deeds of sale making him a majority owner of
Lot No. 4389. He further denied that he acquired a specific and definite portion of the
questioned property, citing as evidence the deed of sale which does not mention any
boundaries or specific portion. He explained that Jesus permitted him to occupy a portion
notexceeding 3000 square meters conditioned on the result of the partition of the co-owners.11
Regarding the forcible entry case, Jesus and Lapinid admitted that such case was filed but the
same was already dismissed by the Municipal Trial Court of Carcar, Cebu. In that decision, it
was ruled that the buyers, including Lapinid, were buyers in good faith since a proof of
ownership was shown to them by Jesus before buying the property. 12
On 15 October 2007, the trial court dismissed the complaint of petitioners in this wise:
Therefore, the Court DISMISSES the Complaint. At the same time, the Court NULLIFIES the
site assignment made by Jesus Velez in the Deed of Sale, dated November 9, 1997, of Lorenzo
Lapinid’s portion, the exact location of which still has to be determined either by agreement of
the co-owners or by the Court in proper proceedings.13
Aggrieved, petitioners filed their partial motion for reconsideration which was denied through
a 26 November 2007 Order of the court.14 Thereafter, they filed a notice of appeal on 10
December 2007.15
On 30 January 2009, the Court of Appeals affirmed 16 the decision of the trial court. It
validated the sale and ruled that the compromise agreement did not affect the validity
of the sale previously executed by Jesus and Lapinid. It likewise dismissed the claim
for rental payments, attorney’s fees and litigation expenses of the petitioners.
Upon appeal before this Court, the petitioners echo the same arguments posited
before the lower courts. They argue that Lapinid, as the successor-in-interest of
Jesus, is also bound by the 2001 judgment based on compromise stating that the
parcels of land must be sold jointly by Jesus, Mariano and Vicente and the proceeds
of the sale be divided among the coowners. To further strengthen their contention,
they advance the argument that since the portion sold was a definite and specific
portion of a co-owned property, the entire deed of sale must be declared null and
void.
We deny the petition.
Admittedly, Jesus sold an area ofland to Lapinid on 9 November 1997. To simplify,
the question now iswhether Jesus, as a co-owner, can validly sell a portion of the
property heco-owns in favor of another person. We answer in the affirmative.
A co-owner has an absolute ownership of his undivided and proindiviso share in the
co-owned property.17 He has the right to alienate, assign and mortgage it, even to the
extent of substituting a third person in its enjoyment provided that no personal
rightswill be affected. This is evident from the provision of the Civil Code:
Art. 493. Each co-owner shall have the full ownership of his part and of the fruits
and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it,
and even substitute another person in its enjoyment, except when personal rights are
involved. But the effect of the alienation or the mortgage, with respect to the co-
owners, shall be limited to the portion which may be allotted to him in the division
upon the termination of the co-ownership.
A co-owner is an owner of the whole and over the whole he exercises the right of
dominion, but he is at the same time the owner of a portion which is truly
abstract.18 Hence, his co-owners have no right to enjoin a coowner who intends to
alienate or substitute his abstract portion or substitute a third person in its
enjoyment.19
In this case, Jesus can validly alienate his co-owned property in favor of Lapinid,
free from any opposition from the co-owners. Lapinid, as a transferee, validly
obtained the same rights of Jesus from the date of the execution of a valid sale.
Absent any proof that the sale was not perfected, the validity of sale subsists. In
essence, Lapinid steps into the shoes of Jesus as co-owner of an ideal and
proportionate share in the property held in common.20 Thus, from the perfection of
contract on 9 November 1997, Lapinid eventually became a co-owner of the
property.
Even assuming that the petitioners are correct in their allegation that the disposition
in favor of Lapinid before partition was a concrete or definite portion, the validity of
sale still prevails.
In a catena of decisions,21 the Supreme Court had repeatedly held that no individual
can claim title to a definite or concrete portion before partition of co-owned property.
Each co-owner only possesses a right to sell or alienate his ideal share after partition.
However, in case he disposes his share before partition, such disposition does not
make the sale or alienation null and void. What will be affected on the sale is only
his proportionate share, subject to the results of the partition. The co-owners who did
not give their consent to the sale stand to be unaffected by the alienation. 22
As explained in Spouses Del Campo v. Court of Appeals:23
We are not unaware of the principle that a co-owner cannot rightfully dispose of a
particular portion of a co-owned property prior to partition among all the co-owners.
However, this should not signify that the vendee does not acquire anything atall in
case a physically segregated area of the co-owned lot is in fact sold to him. Since the
coowner/vendor’s undivided interest could properly be the object of the contract of
sale between the parties, what the vendee obtains by virtue of such a sale are the
same rights as the vendor had asco-owner, in an ideal share equivalent to the
consideration given under their transaction. In other words, the vendee steps into the
shoes of the vendor as co-owner and acquires a proportionate abstract share in the
property held in common.24
Also worth noting is the pronouncement in Lopez v. Vda. De Cuaycong:25
x x x The fact that the agreement in question purported to sell a concrete portionof
the hacienda does not render the sale void, for it is a wellestablished principle that
the binding force of a contract must be recognized as far as it is legally possible to do
so. "Quando res non valet ut ago, valeat quantumvalere potest." (When a thing is of
no force as I do it, it shall have as much force as it can have).26 (Italics theirs).
Consequently, whether the disposition involves an abstract or concrete portion of the
co-owned property, the sale remains validly executed.
The validity of sale being settled,it follows that the subsequent compromise
agreement between the other co-owners did not affect the rights of Lapinid as a co-
owner.
Records show that on 13 August 2001, a judgment based on compromise agreement
was rendered with regard to the previous partition case involving the same parties
pertaining to several parcels of land, including the disputed lot. The words of the
compromise state that: COME NOW[,] the parties and to this Honorable Court, most
respectfully state that instead of partitioning the properties, subject matter of
litigation, that they will just sell the properties covered by TCT Nos. 25796, 25797
and 25798 of the Register of Deeds of the Province of Cebu and divide the proceeds
among themselves.
That Jesus Velez, Mariano Velez and Vicente Torres, Jr. are currently authorized to
sell said properties, receive the proceeds thereof and distribute them to the parties. 27
Be that as it may, the compromise agreement failed to defeat the already accrued
right of ownership of Lapinid over the share sold by Jesus. As early as 9 November
1997, Lapinid already became a co-owner of the property and thus, vested with all
the rights enjoyed by the other co-owners. The judgment based on the compromise
agreement, which is to have the covered properties sold, is valid and effectual
provided as it does not affect the proportionate share of the non-consenting party.
Accordingly, when the compromise agreement was executed without Lapinid’s
consent, said agreement could not have affected his ideal and undivided share.
Petitioners cannot sell Lapinid’s share absent his consent. Nemo dat quod non habet
– "no one can give what he does not have."28
This Court has ruled in many cases that even if a co-owner sells the whole property
as his, the sale will affect only his own share but not those of the other co-owners
who did not consent tothe sale. This is because the sale or other disposition of a co-
owner affects only his undivided share and the transferee gets only what would
correspond to his grantor in the partition of the thing owned in common.29
We find unacceptable the argument that Lapinid must pay rental payments to the
other co-owners.1âwphi1
As previously discussed, Lapinid,from the execution of sale, became a co-owner
vested with rights to enjoy the property held in common.
Clearly specified in the Civil Code are the following rights:
Art. 486. Each co-owner may use the thing owned in common, provided he does so
in accordance with the purpose for which it is intended and in such a way as not to
injure the interest of the co-ownership or prevent the other co-owners from using it
according to their rights. The purpose of the co-ownership may be changed by
agreement, express or implied.
Art. 493. Each co-owner shall havethe full ownership of his part and of the fruits and
benefits pertaining thereto, and he may therefore alienate, assign or mortgage it and
even substitute another person in its enjoyment, except when personal rightsare
involved. But the effect of the alienation or mortgage, with respect to the co-owners,
shall be limited to the portion which may be allotted to him in the division upon the
termination of the co-ownership.
Affirming these rights, the Court held in Aguilar v. Court of Appeals that:30
x x x Each co-owner of property heldpro indivisoexercises his rights over the whole
property and may use and enjoy the same with no other limitation than that he shall
not injure the interests of his co-owners, the reason being that until a division is
made, the respective share of each cannot be determined and every co-
ownerexercises, together with his coparticipants joint ownership over the pro
indiviso property, in addition to his use and enjoyment of the same. 31 From the
foregoing, it is absurd to rule that Lapinid, who is already a co-owner, be ordered to
pay rental payments to his other co-owners. Lapinid’s right of enjoyment over the
property owned in common must be respected despite opposition and may notbe
limited as long he uses the property to the purpose for which it isintended and he
does not injure the interest of the co-ownership.
Finally, we find no error on denial of attorney’s fees and litigation expenses.
Pursuant to Article 2208 of the New Civil Code, attorney’s fees and expenses of
litigation, in the absence of stipulation, are awarded only in the following instances:
xxxx
1. When exemplary damages are awarded;
2. When the defendant’s act or omission has compelled the plaintiff to
litigate with third persons or to incur expenses to protect his interests;
3. In criminal cases of malicious prosecution against the plaintiff;
4. In case of a clearly unfounded civil action or proceeding against the
plaintiff;
5. Where the defendant acted in gross and evident bad faith in refusing to
satisfy the plaintiff’s plainly valid and demandable claim;
6. In actions for legal support;
7. In actions for the recovery of wages of household helpers, laborers and
skilled workers;
8. In actions for indemnity under workmen's compensation and employer's
liability laws;
9. In a separate civil action to recover civil liability arising from a cnme;
10. When at least double judicial costs arc awarded;
11. In any other case where the court deems it just and equitable that
attorney's fees and expenses oflitigation should be recovered.
In all cases, the attorney's fees and expenses of litigation must be reasonable.
Petitioners cite Jesus' act of selling a definite portion to Lapinid as the reason which
forced them to litigate and file their complaint. However, though the Court may not
fault the complainants when they filed a complaint based on their perceived cause of
action, they should have also considered thoroughly that it is well within the rights of
a co-owner to validly sell his ideal share pursuant to law and jurisprudence.
WHEREFORE, the petition is DENIED. Accordingly, the Decision and Resolution
of the Court of Appeals dated 30 January 2009 and 14 May 2009 are hereby
AFFIRMED.
SO ORDERED.
G.R. No. 152766 June 20, 2003
LILIA SANCHEZ, Petitioner,
vs.
COURT OF APPEALS, HON. VICTORINO S. ALVARO as Presiding Judge, RTC-Br.
120, Caloocan City, and VIRGINIA TERIA, Respondents.
DECISION
BELLOSILLO, J.: This is a Special Civil Action for Certiorari under Rule 65 of the Rules of
Court to annul and set aside the Decision of the Court of Appeals dated 23 May 2001 as well
as its Resolution dated 8 January 2002 in CA-G.R. SP No. 59182.
Lilia Sanchez, petitioner, constructed a house on a 76-square meter lot owned by her parents-
in-law. The lot was registered under TCT No. 263624 with the following co-owners: Eliseo
Sanchez married to Celia Sanchez, Marilyn Sanchez married to Nicanor Montalban, Lilian
Sanchez, widow, Nenita Sanchez, single, Susana Sanchez married to Fernando Ramos, and
Felipe Sanchez.1 On 20 February 1995, the lot was registered under TCT No. 289216 in the
name of private respondent Virginia Teria by virtue of a Deed of Absolute Sale supposed to
have been executed on 23 June 19952 by all six (6) co-owners in her favor.3 Petitioner claimed
that she did not affix her signature on the document and subsequently refused to vacate the lot,
thus prompting private respondent Virginia Teria to file an action for recovery of possession
of the aforesaid lot with the Metropolitan Trial Court (MeTC) of Caloocan City sometime in
September 1995, subsequently raffled to Br. 49 of that court.
On 12 February 1998, the MeTC-Br. 49 of Caloocan City ruled in favor of private respondent
declaring that the sale was valid only to the extent of 5/6 of the lot and the other 1/6 remaining
as the property of petitioner, on account of her signature in the Deed of Absolute Sale having
been established as a forgery.
Petitioner then elevated her appeal to the Regional Trial Court of Caloocan City, subsequently
assigned to Br. 120, which ordered the parties to file their respective memoranda of appeal.
Counsel for petitioner did not comply with this order, nor even inform her of the developments
in her case. Petitioner not having filed any pleading with the RTC of Caloocan City, the trial
court affirmed the 27 July 1998 decision of the MeTC.
On 4 November 1998, the MeTC issued an order for the issuance of a writ of execution in
favor of private respondent Virginia Teria, buyer of the property. On 4 November 1999 or a
year later, a Notice to Vacate was served by the sheriff upon petitioner who however refused
to heed the Notice.
On 28 April 1999 private respondent started demolishing petitioner’s house without any
special permit of demolition from the court.
Due to the demolition of her house which continued until 24 May 1999 petitioner
was forced to inhabit the portion of the premises that used to serve as the house’s
toilet and laundry area.
On 29 October 1999 petitioner filed her Petition for Relief from Judgment with the
RTC on the ground that she was not bound by the inaction of her counsel who failed
to submit petitioner’s appeal memorandum. However the RTC denied the Petition
and the subsequent Motion for Reconsideration.
On 14 June 2000 petitioner filed her Petition for Certiorari with the Court of Appeals
alleging grave abuse of discretion on the part of the court a quo.
On 23 May 2001 the appellate court dismissed the petition for lack of
merit.1âwphi1 On 18 June 2001 petitioner filed a Motion for Reconsideration but the
Court of Appeals denied the motion in its Resolution of 8 January 2002.
The only issue in this case is whether the Court of Appeals committed grave abuse of
discretion in dismissing the challenged case before it.
As a matter of policy, the original jurisdiction of this Court to issue the so-called extraordinary
writs should generally be exercised relative to actions or proceedings before the Court of
Appeals or before constitutional or other tribunals or agencies the acts of which for some
reason or other are not controllable by the Court of Appeals. Where the issuance of the
extraordinary writ is also within the competence of the Court of Appeals or the Regional Trial
Court, it is either of these courts that the specific action for the procurement of the writ must
be presented. However, this Court must be convinced thoroughly that two (2) grounds exist
before it gives due course to a certiorari petition under Rule 65: (a) The tribunal, board or
officer exercising judicial or quasi-judicial functions has acted without or in excess of its or
his jurisdiction; and (b) There is no appeal nor any plain, speedy and adequate remedy in the
ordinary course of law.
Despite the procedural lapses present in this case, we are giving due course to this petition as
there are matters that require immediate resolution on the merits to effect substantial justice.
The Rules of Court should be liberally construed in order to promote their object of securing a
just, speedy and inexpensive disposition of every action or proceeding. 4
The rules of procedure should be viewed as mere tools designed to aid the courts in the
speedy, just and inexpensive determination of the cases before them. Liberal construction of
the rules and the pleadings is the controlling principle to effect substantial justice.5 Litigations
should, as much as possible, be decided on their merits and not on mere technicalities. 6
Verily, the negligence of petitioner’s counsel cannot be deemed as negligence of
petitioner herself in the case at bar. A notice to a lawyer who appears to have been
unconscionably irresponsible cannot be considered as notice to his client.7 Under the
peculiar circumstances of this case, it appears from the records that counsel was
negligent in not adequately protecting his client’s interest, which necessarily calls for
a liberal construction of the Rules.
The rationale for this approach is explained in Ginete v. Court of Appeals - 8
This Court may suspend its own rules or exempt a particular case from its operation where the
appellate court failed to obtain jurisdiction over the case owing to appellant’s failure to
perfect an appeal. Hence, with more reason would this Court suspend its own rules in cases
where the appellate court has already obtained jurisdiction over the appealed case. This
prerogative to relax procedural rules of the most mandatory character in terms of compliance,
such as the period to appeal has been invoked and granted in a considerable number of cases
xxxx
Let it be emphasized that the rules of procedure should be viewed as mere tools designed to
facilitate the attainment of justice. Their strict and rigid application, which would result in
technicalities that tend to frustrate rather than promote substantial justice, must always be
eschewed. Even the Rules of Court reflect this principle. The power to suspend or even
disregard rules can be so pervasive and compelling as to alter even that which this Court itself
has already declared to be final, as we are now constrained to do in the instant case x x x x
The emerging trend in the rulings of this Court is to afford every party litigant the amplest
opportunity for the proper and just determination of his cause, free from the constraints of
technicalities. Time and again, this Court has consistently held that rules must not be applied
rigidly so as not to override substantial justice.
Aside from matters of life, liberty, honor or property which would warrant the suspension of
the Rules of the most mandatory character and an examination and review by the appellate
court of the lower court’s findings of fact, the other elements that should be considered are the
following: (a) the existence of special or compelling circumstances, (b) the merits of the case,
(c) a cause not entirely attributable to the fault or negligence of the party favored by the
suspension of the rules, (d) a lack of any showing that the review sought is merely frivolous
and dilatory, and (e) the other party will not be unjustly prejudiced thereby. 9
The suspension of the Rules is warranted in this case since the procedural infirmity was not
entirely attributable to the fault or negligence of petitioner. Besides, substantial justice requires
that we go into the merits of the case to resolve the present controversy that was brought about
by the absence of any partition agreement among the parties who were co-owners of the
subject lot in question. Hence, giving due course to the instant petition shall put an end to the
dispute on the property held in common.
In People’s Homesite and Housing Corporation v. Tiongco 10 we held:
There should be no dispute regarding the doctrine that normally notice to counsel is notice to
parties, and that such doctrine has beneficent effects upon the prompt dispensation of justice.
Its application to a given case, however, should be looked into and adopted, according to the
surrounding circumstances; otherwise, in the court’s desire to make a short-cut of the
proceedings, it might foster, wittingly or unwittingly, dangerous collusions to the detriment of
justice. It would then be easy for one lawyer to sell one’s rights down the river, by just
alleging that he just forgot every process of the court affecting his clients, because he was so
busy. Under this circumstance, one should not insist that a notice to such irresponsible lawyer
is also a notice to his clients.
Thus, we now look into the merits of the petition. This case overlooks a basic yet significant
principle of civil law: co-ownership. Throughout the proceedings from the MeTC to the Court
of Appeals, the notion of co-ownership11 was not sufficiently dealt with. We attempt to
address this controversy in the interest of substantial justice. Certiorari should therefore be
granted to cure this grave abuse of discretion.
Sanchez Roman defines co-ownership as "the right of common dominion which two or more
persons have in a spiritual part of a thing, not materially or physically divided. 12 Manresa
defines it as the "manifestation of the private right of ownership, which instead of being
exercised by the owner in an exclusive manner over the things subject to it, is exercised by
two or more owners and the undivided thing or right to which it refers is one and the same." 13
The characteristics of co-ownership are: (a) plurality of subjects, who are the co-owners, (b)
unity of or material indivision, which means that there is a single object which is not
materially divided, and which is the element which binds the subjects, and, (c) the recognition
of ideal shares, which determines the rights and obligations of the co-owners.14
In co-ownership, the relationship of such co-owner to the other co-owners is fiduciary in
character and attribute. Whether established by law or by agreement of the co-owners, the
property or thing held pro-indiviso is impressed with a fiducial nature so that each co-owner
becomes a trustee for the benefit of his co-owners and he may not do any act prejudicial to the
interest of his co-owners.15
Thus, the legal effect of an agreement to preserve the properties in co-ownership is to create
an express trust among the heirs as co-owners of the properties. Co-ownership is a form of
trust and every co-owner is a trustee for the others.16
Before the partition of a land or thing held in common, no individual or co-owner can claim
title to any definite portion thereof. All that the co-owner has is an ideal or abstract quota or
proportionate share in the entire land or thing.17
Article 493 of the Civil Code gives the owner of an undivided interest in the property the right
to freely sell and dispose of it, i.e., his undivided interest. He may validly lease his undivided
interest to a third party independently of the other co-owners.18 But he has no right to sell or
alienate a concrete, specific or determinate part of the thing owned in common because his
right over the thing is represented by a quota or ideal portion without any physical
adjudication.19
Although assigned an aliquot but abstract part of the property, the metes and bounds of
petitioner’s lot has not been designated. As she was not a party to the Deed of Absolute Sale
voluntarily entered into by the other co-owners, her right to 1/6 of the property must be
respected. Partition needs to be effected to protect her right to her definite share and determine
the boundaries of her property. Such partition must be done without prejudice to the rights of
private respondent Virginia Teria as buyer of the 5/6 portion of the lot under dispute.
WHEREFORE, the Petition is GRANTED. The Decision of the Court of Appeals dated 23 May 2001 as
well as its Resolution dated 8 January 2002 in CA-G.R. SP No. 59182 is ANNULLED and SET ASIDE.
A survey of the questioned lot with TCT No. 289216 (formerly TCT No. 263624) by a duly licensed
geodetic engineer and the PARTITION of the aforesaid lot are ORDERED.Let the records of this case be
REMANDED to MeTC-Br. 49, Caloocan City to effect the aforementioned survey and partition, as well
as segregate the 1/6 portion appertaining to petitioner Lilia Sanchez.
The Deed of Absolute Sale by the other co-owners to Virginia Teria shall be RESPECTED insofar as the
other undivided 5/6 portion of the property is concerned.
SO ORDERED.

[G.R. No. 159665 : August 03, 2010]
ANSELMO TAGHOY AND THE LATE VICENTA T. APA, SUBSTITUTED
BY HER HEIRS, NAMELY, MANUEL T. APA, NICASIO T. APA, DELFIN
T. APA, ALMA A. JACALAN, ARLENE A. SUMALINOG, AIDA A. ARONG,
ELENA A. COSEP, ALFREDO T. APA, ISABELO T. APA, JR., ISABELO T.
APA III, SHERWIN T. APA, AND FLORITO T. APA, PETITIONERS, VS.
SPS. FELIXBERTO TIGOL, JR. AND ROSITA TIGOL, RESPONDENTS.
DECISION
BRION, J.:
We resolve the present petition for review on certiorari[1] filed by petitioners
Anselmo Taghoy and the heirs of Vicenta T. Apa (petitioners) to challenge the
decision[2] and the resolution[3] of the Court of Appeals (CA) in CA-G.R. CV No.
54385.[4] The CA decision set aside the decision[5] of the Regional Trial Court
(RTC), Branch 27, Lapu-lapu City in Civil Case No. 2247. The CA resolution
denied the petitioners' subsequent motion for reconsideration.
FACTUAL BACKGROUND
The facts of the case, gathered from the records, are briefly summarized below.
Spouses Filomeno Taghoy and Margarita Amit[6] owned an 11,067 square meter
parcel of land, known as Lot 3635-B of subdivision plan (LRC) Psd-212881 (subject
property), located in Barrio Agus, Lapu-Lapu City, Cebu under Transfer Certificate
of Title (TCT) No. 6466 of the Lapu-Lapu City Registry of Deeds.[7]
[8]
On August 6, 1975, Filomeno and Margarita executed a special power of attorney,
appointing Felixberto Tigol, Jr. as their attorney-in-fact.[9] On August 21, 1975,
Felixberto, as attorney-in-fact, executed a real estate mortgage over the subject
property to secure a loan of P22,000.00 with the Philippine National Bank
(PNB).[10] Filomeno and Margarita obtained the loan to finance the shellcraft
business of their children.[11]
Filomeno died intestate on February 12, 1976. On July 27, 1979, his widow,
Margarita, and their seven children, namely, Vicenta, Felisa, Pantaleon, Gaudencio,
Anselmo, Anastacia and Rosita, as heirs of the deceased, executed a Deed of
Extrajudicial Settlement and Sale, adjudicating to themselves the subject property
and selling the same to Rosita and her husband Felixberto (respondents) for
P1,000.00.[12]
Subsequently, on September 7, 1981 and August 10, 1982, Filomeno's heirs executed
two (2) Deeds of Confirmation of Sale, confirming the supposed sale of the subject
property by Filomeno and Margarita in favor of the respondents for
P1,000.00.[13] Simultaneous with the execution of the deeds, however, the
respondents executed explanatory Joint Affidavits attesting that the sale was without
any consideration, and was only executed to secure a loan. [14]
On March 9, 1983, TCT No. 13250 was issued in the respondents' names. [15] On July
1, 1983, the respondents obtained a P70,000.00 loan with the Philippine Banking
Corporation, secured by a real estate mortgage on the subject property. [16]
Seven (7) years later, on April 17, 1990, Anselmo and Vicenta, together with
Margarita, Felisa, Gaudencio, and Pantaleon's surviving heir, Annabel, filed a
complaint against the respondents and Anastacia for declaration of nullity of the
respondents' TCT and for judicial partition.[17] They alleged that the deeds of
confirmation of sale became the bases for the transfer of the title in the respondents'
names, but the sale was fictitious or simulated, as evidenced by the respondents' own
explanatory joint affidavits attesting that the transfer was for the purpose only of
convenience in securing a loan, not for absolute conveyance or sale.
The respondents admitted that they executed the joint affidavits but countered that
they acquired a valid title to the subject property through the Extrajudicial Settlement
of Heirs and Sale. They claimed that when Filomeno died without the PNB loan
being paid, the heirs agreed that the respondents will advance payment of the loan,
subject to reimbursement, to save the foreclosure of the subject property; the heirs
then executed the Extrajudicial Settlement and Sale in the respondents' favor as their
way of reimbursing the amount the latter paid; the respondents executed the joint
affidavits out of generosity, expressing their willingness to be reimbursed, but when
the heirs failed to reimburse the amounts advanced by them, then they caused the
registration of the title in their names.[18]
Margarita, Felisa, Gaudencio and Annabel failed to appear at the initial hearing,
prompting the petitioners' counsel to manifest that, except for Anselmo and Vicenta,
they were abandoning the complaint.[19] The petitioners
subsequently amended the complaint to implead Margarita, Felisa, Gaudencio and
Annabel as party defendants or unwilling plaintiffs.[20]
THE RTC RULING
In its decision, the RTC found that the sale of the subject property was absolutely
simulated since the deeds of confirmation of sale were executed only to
accommodate the respondents' loan application using the subject property as
collateral. The lower court thus ordered the nullification of the respondents' title. It
likewise ordered the partition of the subject property after reimbursement of the
amount the respondents paid for the loan.[21]
Subsequently, the respondents filed a motion for new trial, anchored on newly
discovered evidence allegedly proving that the subject property is Margarita's
paraphernal property.[22] When the RTC denied[23] the motion for new trial, the
respondents filed an appeal with the CA, under Rule 41 of the Rules of Court.
THE CA RULING
The CA decided the appeal on August 26, 2002, reversing the RTC decision. Relying
upon Margarita's testimony that the respondents paid the loan, the CA found that the
contract between the parties was relatively simulated; the respondents' payment of
the PNB loan was the real consideration for the transfer of title.
After the CA denied[24] the motion for reconsideration[25] that followed, the
petitioners filed the present petition.
THE PETITION
The petitioners argue that the heirs, in executing the extrajudicial settlement, did not
intend to divest themselves of their respective rightful shares, interests and
participation in the subject property because it lacked a consideration, as affirmed by
the respondents' own joint affidavits; the payment of the PNB loan could not be a
valid consideration for the transfer since the loan was still unpaid and outstanding at
the time of the execution of the extrajudicial settlement.[26]
THE CASE FOR THE RESPONDENTS
The respondents, on the other hand, maintain that the Extrajudicial Settlement and
Sale was the basis of their registration of title, and their payment of the PNB loan
was the real consideration for the transfer; the joint affidavits were executed only out
of generosity and kindness, subject to the heirs' reimbursement of the amounts they
paid for the loan, such that when the heirs did not reimburse the amounts paid, they
then caused the registration of title in their names.[27]
THE ISSUE
The core issue boils down to whether the sale of the subject property between the
parties was absolutely or relatively simulated.
OUR RULING
We find the petition meritorious.
This Court is not a trier of facts. However, if the inference drawn by the appellate
court from the facts is manifestly mistaken, as in the present case, we can review the
evidence to allow us to arrive at the correct factual conclusions based on the
record.[28]
In the interpretation of contracts, the intention of the parties is accorded primordial
consideration;[29] such intention is determined from the express terms of their
agreement,[30] as well as their contemporaneous and subsequent acts.[31] When the
parties do not intend to be bound at all, the contract is absolutely simulated; if the
parties conceal their true agreement, then the contract is relatively simulated. [32] An
absolutely simulated contract is void, and the parties may recover from each other
what they may have given under the simulated contract, while a relatively simulated
contract is valid and enforceable as the parties' real agreement binds
them.[23] Characteristic of simulation is that the apparent contract is not really
desired or intended to produce legal effects, or in any way, alter the juridical
situation of the parties.[34]
In the present case, the parties never intended to be bound by their agreement as
revealed by the two (2) joint affidavits executed by the respondents simultaneous
with the execution of the deeds of confirmation of sale. The September 7, 1981 Joint
Affidavit stated:
2. That the truth of the matter is that the deed of sale and the confirmation of said
sale by the legal heirs are executed for the purpose of securing a loan in our name
but which amount of said loan shall be divided equally among the legal heirs, and
that every heir shall pay his corresponding share in the amortization payment of said
loan;
3. That said sale was without any consideration, and that we executed this
affidavit to establish the aforestated facts for purposes of loan only but not for
conveyance and transfer in our name absolutely and forever but during the duration
of the terms of the loan;
4. That we executed this affidavit voluntarily and freely in order to establish this
facts (sic) above-mentioned and to undertake to return the said land to the legal
heirs of the late spouse, Filomeno Taghoy, survived by his widow, Rita Amit-
Taghoy, upon full payment of our intended loan.
The August 10, 1982 Joint Affidavit, on the other hand, averred:
3. That the truth of the matter is that said Lot No. 3635-B was sold without any
purchase price or consideration paid to said Filomeno Taghoy, but for the
purpose of securing a loan in our name but which amount of said loan shall be
divided equally among us, the legal heirs of Filomeno Taghoy;
4. That in case the loan will be fully paid, we shall obligate ourselves to
resell, reconvey the said Lot No. 3635-B in favor of the Heirs of Filomeno Taghoy
and Rita Amit, and in case, the said loan will not be post (sic) through.
5. That we executed this affidavit voluntarily and freely in order to establish the
aforestated facts and to attest the fact that said deed of confirmation of sale is only
for purposes of convenience in securing the loan and not for absolute conveyance or
sale.[36]

The joint affidavits are very solid pieces of evidence in the petitioners' favor. They
constitute admissions against interest made by the respondents under oath. An
admission against interest is the best evidence that affords the greatest certainty of
the facts in dispute,[37] based on the presumption that no man would declare
anything against himself unless such declaration is true. [38] It is fair to presume that
the declaration corresponds with the truth, and it is his fault if it does not. [39]

Thus, by the respondents' own admissions, they never intended to be bound by the
sale; they merely executed the documents for convenience in securing a bank loan,
and they agreed to reconvey the subject property upon payment of the loan. The sale
was absolutely simulated and, therefore, void.

We find that the CA misappreciated Margarita's testimony that the respondents are
entitled to the entire property because they redeemed or paid the bank loan. [40] The
failure of the other heirs to reimburse the amounts advanced by the respondents in
payment of the loan did not entitle the latter to claim full ownership of the co-owned
property.[41] It only gave them the right to claim reimbursement for the amounts they
advanced in behalf of the co-ownership. The respondents' advance payments are in
the nature of necessary expenses for the preservation of the co-ownership. Article
488 of the Civil Code provides that necessary expenses may be incurred by one co-
owner, subject to his right to collect reimbursement from the remaining co-
owners.[42] Until reimbursed, the respondents hold a lien upon the subject property
for the amount they advanced.

Based on the foregoing, we find that the CA erred in setting aside the decision of the
RTC and in dismissing the petitioners' complaint against the respondents.

WHEREFORE, we hereby REVERSE and SET ASIDE the decision dated August
26, 2002 and the resolution dated July 22, 2003 of the Court of Appeals in CA-G.R.
CV No. 54385. The decision dated February 23, 1994 of the Regional Trial Court,
Branch 27, Lapu-Lapu City in Civil Case No. 2247 is REINSTATED. No
pronouncement as to costs.

SO ORDERED.
G.R. No. 164110 February 12, 2008
LEONOR B. CRUZ, petitioner,
vs.
TEOFILA M. CATAPANG, respondent.
DECISION
QUISUMBING, J.:
This petition for review seeks the reversal of the Decision1 dated September 16, 2003
and the Resolution2 dated June 11, 2004 of the Court of Appeals in CA-G.R. SP No.
69250. The Court of Appeals reversed the Decision3 dated October 22, 2001 of the
Regional Trial Court (RTC), Branch 86, Taal, Batangas, which had earlier affirmed
the Decision4 dated September 20, 1999 of the 7th Municipal Circuit Trial Court
(MCTC) of Taal, Batangas ordering respondent to vacate and deliver possession of a
portion of the lot co-owned by petitioner, Luz Cruz and Norma Maligaya.
The antecedent facts of the case are as follows.
Petitioner Leonor B. Cruz, Luz Cruz and Norma Maligaya are the co-owners of a
parcel of land covering an area of 1,435 square meters located at Barangay
Mahabang Ludlod, Taal, Batangas.5 With the consent of Norma Maligaya, one of the
aforementioned co-owners, respondent Teofila M. Catapang built a house on a lot
adjacent to the abovementioned parcel of land sometime in 1992. The house
intruded, however, on a portion of the co-owned property.6
In the first week of September 1995, petitioner Leonor B. Cruz visited the property
and was surprised to see a part of respondent’s house intruding unto a portion of the
co-owned property. She then made several demands upon respondent to demolish the
intruding structure and to vacate the portion encroaching on their property. The
respondent, however, refused and disregarded her demands. 7
On January 25, 1996, the petitioner filed a complaint8 for forcible entry against
respondent before the 7th MCTC of Taal, Batangas. The MCTC decided in favor of
petitioner, ruling that consent of only one of the co-owners is not sufficient to justify
defendant’s construction of the house and possession of the portion of the lot in
question.9 The dispositive portion of the MCTC decision reads:
WHEREFORE, judgment is hereby rendered ordering the defendant or any person
acting in her behalf to vacate and deliver the possession of the area illegally occupied
to the plaintiff; ordering the defendant to pay plaintiff reasonable attorney’s fees of
P10,000.00, plus costs of suit.
SO ORDERED.10
On appeal, the RTC, Branch 86, Taal, Batangas, affirmed the MCTC’s ruling in a
Decision dated October 22, 2001, the dispositive portion of which states:
Wherefore, premises considered, the decision [appealed] from is hereby
affirmed in toto.
SO ORDERED.11
After her motion for reconsideration was denied by the RTC, respondent filed a
petition for review with the Court of Appeals, which reversed the RTC’s decision.
The Court of Appeals held that there is no cause of action for forcible entry in this
case because respondent’s entry into the property, considering the consent given by
co-owner Norma Maligaya, cannot be characterized as one made through strategy or
stealth which gives rise to a cause of action for forcible entry.12 The Court of
Appeals’ decision further held that petitioner’s remedy is not an action for ejectment
but an entirely different recourse with the appropriate forum. The Court of Appeals
disposed, thus:
WHEREFORE, premises considered, the instant Petition is
hereby GRANTED. The challenged Decision dated 22 October 2001 as well as the
Order dated 07 January 2002 of the Regional Trial Court of Taal, Batangas, Branch
86, are hereby REVERSED and SET ASIDE and, in lieu thereof, another is
entered DISMISSING the complaint for forcible entry docketed as Civil Case No.
71-T.
SO ORDERED.13
After petitioner’s motion for reconsideration was denied by the Court of Appeals in a
Resolution dated June 11, 2004, she filed the instant petition.
Raised before us for consideration are the following issues:
I.. WHETHER OR NOT THE KNOWLEDGE AND CONSENT OF CO-OWNER NORMA
MALIGAYA IS A VALID LICENSE FOR THE RESPONDENT TO ERECT THE
BUNGALOW HOUSE ON THE PREMISES OWNED PRO-INDIVISO SANS CONSENT
FROM THE PETITIONER AND OTHE[R] CO-OWNER[.]
II.. WHETHER OR NOT RESPONDENT, BY HER ACTS, HAS ACQUIRED EXCLUSIVE
OWNERSHIP OVER THE PORTION OF THE LOT SUBJECT OF THE PREMISES
PURSUANT TO THE CONSENT GRANTED UNTO HER BY CO-OWNER NORMA
MALIGAYA TO THE EXCLUSION OF THE PETITIONER AND THE OTHER CO-
OWNER.14
III. WHETHER OR NOT RESPONDENT IN FACT OBTAINED POSSESSION OF THE
PROPERTY IN QUESTION BY MEANS OF SIMPLE STRATEGY.15
Petitioner prays in her petition that we effectively reverse the Court of Appeals’
decision.
Simply put, the main issue before us is whether consent given by a co-owner of a
parcel of land to a person to construct a house on the co-owned property warrants the
dismissal of a forcible entry case filed by another co-owner against that person.
In her memorandum,16 petitioner contends that the consent and knowledge of co-
owner Norma Maligaya cannot defeat the action for forcible entry since it is a basic
principle in the law of co-ownership that no individual co-owner can claim title to
any definite portion of the land or thing owned in common until partition.
17
On the other hand, respondent in her memorandum counters that the complaint for
forcible entry cannot prosper because her entry into the property was not through
strategy or stealth due to the consent of one of the co-owners. She further argues that
since Norma Maligaya is residing in the house she built, the issue is not
just possession de facto but also one of possession de jure since it involves rights of
co-owners to enjoy the property.
As to the issue of whether or not the consent of one co-owner will warrant the
dismissal of a forcible entry case filed by another co-owner against the person who
was given the consent to construct a house on the co-owned property, we have held
that a co-owner cannot devote common property to his or her exclusive use to the
prejudice of the co-ownership.18 In our view, a co-owner cannot give valid consent to
another to build a house on the co-owned property, which is an act tantamount to
devoting the property to his or her exclusive use.
Furthermore, Articles 486 and 491 of the Civil Code provide:
Art. 486. Each co-owner may use the thing owned in common, provided he does so in
accordance with the purpose for which it is intended and in such a way as not to injure the
interest of the co-ownership or prevent the other co-owners from using it according to their
rights. The purpose of the co-ownership may be changed by agreement, express or implied.
Art. 491. None of the co-owners shall, without the consent of the others, make alterations in
the thing owned in common, even though benefits for all would result therefrom. However, if
the withholding of the consent by one or more of the co-owners is clearly prejudicial to the
common interest, the courts may afford adequate relief.
Article 486 states each co-owner may use the thing owned in common provided he
does so in accordance with the purpose for which it is intended and in such a way as
not to injure the interest of the co-ownership or prevent the other co-owners from
using it according to their rights. Giving consent to a third person to construct a
house on the co-owned property will injure the interest of the co-ownership and
prevent other co-owners from using the property in accordance with their rights.
Under Article 491, none of the co-owners shall, without the consent of the others,
make alterations in the thing owned in common. It necessarily follows that none of
the co-owners can, without the consent of the other co-owners, validly consent to the
making of an alteration by another person, such as respondent, in the thing owned in
common. Alterations include any act of strict dominion or ownership and any
encumbrance or disposition has been held implicitly to be an act of alteration. 19 The
construction of a house on the co-owned property is an act of dominion. Therefore, it
is an alteration falling under Article 491 of the Civil Code. There being no consent
from all co-owners, respondent had no right to construct her house on the co-owned
property.
Consent of only one co-owner will not warrant the dismissal of the complaint for
forcible entry filed against the builder. The consent given by Norma Maligaya in the
absence of the consent of petitioner and Luz Cruz did not vest upon respondent any
right to enter into the co-owned property. Her entry into the property still falls under
the classification "through strategy or stealth."
The Court of Appeals held that there is no forcible entry because respondent’s entry
into the property was not through strategy or stealth due to the consent given to her
by one of the co-owners. We cannot give our imprimatur to this sweeping
conclusion. Respondent’s entry into the property without the permission of petitioner
could appear to be a secret and clandestine act done in connivance with co-owner
Norma Maligaya whom respondent allowed to stay in her house. Entry into the land
effected clandestinely without the knowledge of the other co-owners could be
categorized as possession by stealth.20 Moreover, respondent’s act of getting only the
consent of one co-owner, her sister Norma Maligaya, and allowing the latter to stay
in the constructed house, can in fact be considered as a strategy which she utilized in
order to enter into the co-owned property. As such, respondent’s acts constitute
forcible entry.
Petitioner’s filing of a complaint for forcible entry, in our view, was within the one-year
period for filing the complaint. The one-year period within which to bring an action for
forcible entry is generally counted from the date of actual entry to the land. However, when
entry is made through stealth, then the one-year period is counted from the time the petitioner
learned about it.21 Although respondent constructed her house in 1992, it was only in
September 1995 that petitioner learned of it when she visited the property. Accordingly, she
then made demands on respondent to vacate the premises. Failing to get a favorable response,
petitioner filed the complaint on January 25, 1996, which is within the one-year period from
the time petitioner learned of the construction.
WHEREFORE, the petition is GRANTED. The Decision dated September 16, 2003 and the
Resolution dated June 11, 2004 of the Court of Appeals in CA-G.R. SP No. 69250
are REVERSED and SET ASIDE. The Decision dated October 22, 2001 of the Regional
Trial Court, Branch 86, Taal, Batangas is REINSTATED. Costs against respondent.
SO ORDERED.
G.R. No. 193374, June 08, 2016
HEIRS OF THE LATE GERRY*
ECARMA, NAMELY: AVELINA SUIZA-ECARMA,
DENNIS ECARMA, JERRY LYN ECARMA PENA, ANTONIO ECARMA AND
NATALIA ECARMA SANGALANG, Petitioners, v. COURT OF APPEALS AND
RENATO A. ECARMA, Respondents.
DECISION
PEREZ, J.:
We here have another case of heirs quarrelling over inherited properties, some of them
refusing their partition.
Before us is a Petition for Certiorari1 under Rule 65 of the Rules of Court assailing the twin
Resolutions2 of the Court of Appeals (CA) in CA-G.R. CV No. 92375 for having been issued
with grave abuse of discretion amounting to lack of or in excess of jurisdiction. The appellate
court dismissed outright the appeal of petitioners, heirs of Gerry Ecarma for a number of
procedural defects, including failure to comply with Section 13, Rule 44 of the Rules of Court
on the contents of their appellants' brief. Petitioners sought to appeal the two (2) Orders 3 of the
Regional Trial Court (RTC), Branch 220, Quezon City in SP PROC. No. Q-90-6332 which
approved the Project of Partition proposed by respondent Renato Ecarma, administrator in the
intestate proceedings to settle the estate of decedent Arminda vda. de Ecarma covering four
(4) properties.
Because of the outright dismissal of their appeal before the CA, we have a dearth of facts we
had to glean from the bare pleadings of petitioners.
The decedent Arminda was married to Natalio Ecarma who predeceased her on 9 May 1970.
During their marriage, they acquired several properties and begat seven (7) children: (1)
Angelita; (2) Rodolfo; (3) respondent Renato; (4) Maria Arminda; (5) Gerry Anthony Ecarma,
husband and father respectively of herein petitioners Avelina Suiza Ecarma, Dennis Ecarma,
Gerry Lyn Ecarma Pena, Antonio Ecarma and Natalia Ecarma Sangalang (collectively
petitioners and/or heirs of Gerry Ecarma); (6) Fe Shirley; and (7) Rolando.
After Natalio's death, his heirs executed an Extrajudicial Settlement of Estate4 covering four
(4) properties designated as Kitanlad, Cuyapo and Lala (consisting of two separate lots), half
of which was specifically noted as pertaining to herein decedent Arminda's share in their
property regime of conjugal partnership of gains. In the same Extrajudicial Settlement of
Estate signed by all the heirs, the four (4) properties were partitioned among them: Arminda
was assigned an undivided two-ninth's (2/9's) proportion and all their children in equal
proportion of one-ninth (1/9) each. Significantly, despite the partition agreement, no physical
division of the properties was effected, Natalio's heirs remaining in co-ownership (pro
indiviso) even at the time of their mother's, decedent Arminda's, death on 17 April 1983.
On 18 May 1990, after his petition for the probate of Arminda's will was dismissed by the
RTC, Branch 86, Quezon City, respondent Renato filed the subject intestate proceedings
before the RTC, Branch 220.
On 30 January 1991, Renato was appointed Special Administrator by the RTC, Branch 220.
After what appears to be continuing conflict between Gerry Ecarma and the other heirs of
Natalio and Arminda over actual division of their inherited properties, by 9 March 2005,
Renato unequivocally moved to terminate their co-ownership: he filed a Project of Partition of
the Kitanlad Property, alleging that:
1. This probate case has been left unresolved for 16 years now because of the incessant
opposition by Oppositor and legal heir, Jerry Ecarma, the only legal heir who stays in
Kitanlad, for reasons they had ventilated already in this Court in their previous pleadings, xxx
2. This, Court has ordered the sale of the assets of the estate in an earlier order, but efforts to
sell the Kitanlad property, the most contentious issue, by the Regular Administrator, [Renato
Ecarma |, has been thwarted by Jerry for reasons already known by this Court, xxx
3. The law frowns on the indivision of property held in common indefinitely. Furthermore, the
legal heirs, except Jerry and perhaps the Oppositor, have expressed their desire to have the
Kitanlad property partitioned. The fairest legal way to partition the property without any legal
heir getting a share bigger than the others is to sell the property and divide the net proceeds,
but Jerry's objection to its sale at a price which will attract interested buyers has rendered
nugatory this option. The next best option, with no legal heir getting an undue advantage over
the others, is to divide the property longitudinally from the frontage down to the other end in
seven equal parts. Although this option will render the improvements unusable, it must be
realised that these improvements are now fully depreciated. The. duplex house is 57 years old,
while the apartments are now 40 years old. All seven parts will be equal to each other in all
their aspects: the measurements, length and width, will be the same, each part will have a
frontage to the street. Each legal heir will have complete control over his/her portion. Me/she
may keep it if he/she wishes, or sell it if he/she desires. Allocation of these seven parts will be
by lot.5
On 7 April 2005, Renato filed another motion, Omnibus Motion: Project of Partition of the
Lala and Cuyapo Properties.
Finding the motions impressed with merit, the RTC, Branch 220, on 28 July 2005, 6 issued a
lengthy Order approving the proposed partition of the properties:
1. That the property be divided longitudinally from the frontage down to the other end
in seven (7) equal parts. The shares of Jerry Ecarma and Rodolfo Ecarma shall be
contiguous to each other on one side of the property nearest the main entrance, while
the shares of the other five (5) legal heirs shall comprise the balance thereof.
Following this general guideline, Jerry Ecarma and Rodolfo Ecarma shall determine
among themselves their respective share. Similarly, the five (5) remaining legal
heirs shall determine among themselves by draw of lot their respective shares. They
shall submit to the Petitioner/Regular Administrator their choice of their specific
shares not later [than] fifteen (15) days upon receipt of this Order. Should they fail
to comply, the Regular Administrator is hereby directed to assign the respective
share of each legal heir.
xxxx
II. Cuyapo Property
1. The Cuyapo farm lot shall be partitioned into seven (7) equal parts substantially in
accordance with Annex "A" of the "Partial Project of Partition of Estate" dated 22
June 1992. Lots 1 and 2 will be allocated to Jerry Ecarma and Rodolfo Ecarma, so
that the remaining balance will remain contiguous to one another. The remaining
balance, as prayed for, can now be donated by the five (5) other legal heirs to the
Armed Forces of the Philippines (AFP). This manner of partition will effectuate the
desire of the five (5) remaining legal heirs to donate their share to the AFP.
2. The Regular Administrator is hereby directed to cause the partition and titling of the
property.
3. Expenses for the partition and titling of the property shall be for the personal
account of each legal heir, which shall be deducted from their share of the estate.
Thereafter, Gerry filed both a Notice of Appeal and a Record on Appeal before the RTC,
Branch 220 to bring up on appeal to the CA the trial court's partition order.
It appears that sometime before 4 May 2009, counsel of Gerry Ecarma filed a Notice of Death
of Gerry Ecarma before the appellate court and was subsequently required by the latter to
submit a certified true copy of Gerry Ecarma's death certificate within a prescribed period. 8
Meanwhile, herein petitioners, presumably in substitution of the deceased Gerry Ecarma, filed
their Appellants' Brief pursuant to the order of the appellate court. From this incident of herein
petitioners' Appellants' Brief before the CA, and its contents, the controversy has reached us.
Renato forthwith filed a Motion to Dismiss Appellants' Brief, to which the CA required a
comment from petitioner.9
The Resolutions of the CA finding insufficient herein petitioners' Appellants' Brief are now
before us. The CA ruled that:

The Court xxx finds [petitioners'] submission [that their brief substantially complied with the
III. Lala Property requirements under Section 13, Rule 44 of the Rules of Court] to be utterly devoid of merit.
Indeed, [petitioners'] brief does not contain a subject index, table of cases and authorities,
statement of case, statement of facts and page references to the record in violation of Section
1. The Lala Property consisting of two (2) farm lots contiguous to each other, one 13, Rule 44 of the 1997 Rules of Civil Procedure xxx.
consisting of more than six (6) hectares and the other more than 13 hectares shall
each be partitioned into seven (7) equal parts substantially in accordance with Annex xxxx
"B" of the aforecited "Partial Project of Partition of Estate" dated 22 June 1992, as
submitted by the Regular Administrator. Lots 6 and 7 of the six-hectare lot will Non-compliance with these requirements warrants the dismissal of appeal under Section 1(1),
while Lots 1 and 2 of the 13-hectare lot will be likewise allocated to Jerry Ecarma Rule 50.
and each other. The remaining balance can now be donated by the five (5) other
legal heirs to the AFP. This manner of partition will effectuate the desire of the five xxxx
(5) remaining legal heirs to donate their shares to the AFP.7
[Petitioners] could have easily cured these multiple defects in the same manner their counsel
did with his MCLE compliance and SPA. But, they opted not to. Instead, they stubbornly
insist, albeit erroneously, that their appellants' brief substantially complied with the
Gerry Ecarma filed a motion for reconsideration on the following grounds: (1) the project of requirements. They failed, however, to point out with specificity what part or parts of their
partition of the Kitanlad properties is not feasible, impractical and detrimental to the interests brief contain their so-called substantial compliance. Surely, the Court cannot countenance
of the heirs of the Spouses Natalio and Arminda Ecarma; (2) the planned partition is not in [petitioners'] careless attitude, if not irreverent disregard, of the procedural rules intended
accordance with the wishes of the decedents, the spouses Natalio and Arminda; and (3) the precisely to ensure orderly administration of justice.
RTC, Branch 220, as the court settling the intestate estate of Arminda, has no jurisdiction over
part of.the subject properties which do not form part of Arminda's estate, such undivided share xxxx
already pertaining to the other heirs as part of their inheritance from their deceased father,
Natalio. Accordingly, the appeal is DISMISSED.10
The other oppositor to the partition, Rodolfo Ecarma, likewise filed a Motion for Petitioners moved for reconsideration of the dismissal of their appeal, attaching a
Reconsideration of the 28 July 2005 Order of Partition on the main ground, akin to the 3rd Supplemental Appellants' Brief11 to their motion. However, the appellate court again deemed
ground raised by Gerry in his motion, that the RTC, Branch 220 acted without or in excess of the Supplemental Appellants' Brief to be unsatisfactory and non-compliant with the rules and
jurisdiction by ordering the partition of the subject properties, portions of which do not belong denied petitioners' motion for reconsideration:
to the intestate estate of Arminda.

After Renato filed his Comment/Opposition to the two motions for reconsideration, the RTC, Notably, the new appeal brief, just like the original one, does not contain reference to the
Branch 220, finding no cogent reason to reverse or modify its prior order of partition, issued relevant portions of the record pertaining to its statement of facts. Further, the subject index
an Order denying Gerry's and Renato's motions.
does not contain a summary of arguments and reference to the specific pages of the brief, and rules even attaching a sample copy of an Appellant's Brief found in Guevarra's Legal Forms
the supporting laws and authorities.12 which was purportedly their guideline in revising and submitting their Supplemental
Appellants' Brief to the appellate court.21
From that denial, petitioners filed this petition for certiorari under Rule 65 of the Rules of
Court almost sixty (60) days from the time they received the appellate court's denial of their We assiduously went through the Supplemental Appellants' Brief of herein petitioners and as
motion for reconsideration. the CA have, we likewise find it wanting, a lame attempt at compliance through superficial
changes, devoid of substance.22
At the outset, we see through petitioners' obvious ploy to avoid the necessary consequence of
their failure to file, within the required fifteen-day period, the correct remedy of appeal In fact, the Supplemental Appellants' Brief could only cite Section 1, Rule 74 of the Rules of
by certiorari under Rule 4513 of the Rules of Court, from the assailed ruling of the CA. On this Court as its sole legal authority in questioning the RTC, Branch 220's Order of
score alone, the present petition should have been dismissed outright. Partition.23 Petitioners, even in their present petition before us, are unable to grasp the
necessity of supporting and anchoring their arguments with legal basis. They cannot simply
Petitioners simple allegation of grave abuse of discretion in the CA's dismissal of their appeal cite one section of one rule without expounding thereon.
cannot substitute for the correct remedy of a lost appeal.14
In the recent case of Lui Enterprises, Inc., v. Zuellig Pharma Corporation, et al. ,24 we
Notably, as they have stubbornly done so in the appellate court, petitioners urge us to reverse reiterated the faithful adherence to the rules on the specific contents of an Appellant's Brief as
these adverse rulings of the appellate court without abiding by the rules therefor. provided in Section 14, Rule 44 of the Rules of Court:

First. An appeal by certiorari under Rule 45 of the Rules of Court is different from a petition Lui Enterprises did not comply with the
for certiorari under Rule 65 thereof. A special civil action for certiorari may be availed of rules on the contents of the appellant's brief
only if the lower tribunal has acted without or in excess of jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and if there is no appeal or any other Under Rule 50, Section 1, paragraph (f) of the 1997 Rules of Civil Procedure, the Court of
plain, speedy, and adequate remedy in the ordinary course of law. 5 Simply imputing in a Appeals may, on its own motion or that of the appellee, dismiss an appeal should the
petition that the ruling sought to be reviewed is tainted with grave abuse of discretion does not appellant's brief lack specific requirements under Rule 44, Section 13, paragraphs (a), (c), (d),
magically transform a petition into a special civil action for certiorari. and (f):
chanRoblesvirtualLawlibrary
The appellate court's outright dismissal of therein appellants' appeal was a final order which Section 1. Grounds for dismissal of appeal. - An appeal may be dismissed by the Court of
left it with nothing more to do to resolve the case.16 That disposition is a final and executory Appeals, on its own motion or on that of the appellee, on the following grounds:
order, appealable to, and may be questioned before, this Court by persons aggrieved thereby, chanRoblesvirtualLawlibrary
such as herein petitioners, via Rule 45. xxxx

Moreover, the dismissal of therein appellants', herein petitioners', appeal before the CA is (f) Absence of specific assignment of errors in the appellant's brief, or of page references to
expressly allowed by Section 1(f),17 Rule 50 of the Rules of Court. The appellate court, the record as required in Section 13, paragraphs (a), (c), (d), and (f) of Rule 44[.]
therefore, cannot be charged with grave abuse of discretion as there is no showing that, in the These requirements are the subject index of the matter in brief, page references to the record,
exercise of its judgment, it acted in a capricious, whimsical, arbitrary or despotic manner and a table of cases alphabetically arranged and with textbooks and statutes cited:
tantamount to lack of jurisdiction. Absent grave abuse of discretion, petitioners should have chanRoblesvirtualLawlibrary
filed a petition for review on certiorari under Rule 45 instead of a petition for certiorari under Section 13. Contents of the appellant's brief. - The appellant's brief shall contain, in the order
Rule 65. The soundness of the ruling dismissing petitioners' appeal before the appellate court herein indicated, the following:
is a matter of judgment with respect to which the remedy of the party aggrieved is a Rule 45 chanRoblesvirtualLawlibrary
petition. An error of judgment committed by a court in the exercise of its legitimate (a) A subject index of the matter in brief with a digest of the arguments and page references,
jurisdiction is not the same as grave abuse of discretion. Errors of judgment are correctible by and a table of cases alphabetically arranged, textbooks and statutes cited with references to the
appeal, while those of jurisdiction are reviewable by certiorari.18 pages where they are cited;

Even if we were to take a liberal stance and consider this present petition as that filed under xxxx
Rule 45 of the Rules of Court raising grave error in the appellate courts' ruling, such cannot
cure the unavoidable consequence of dismissal for failure to file an appeal within the (c) Under the heading "Statement of the Case," a clear and concise statement of the nature of
reglementary fifteen-day period provided under Section 219 of Rule 45. the action, a summary of the proceedings, the appealed rulings and orders of the court, the
nature of the controversy, with page references to the record;
Second. The CA correctly dismissed herein petitioners' Appellants' Brief for failure to comply
with the content requirement specified under Section 13 20 of Rule 44. (d) Under the heading "Statement of Facts," a clear and concise statement in a narrative form
of the facts admitted by both parties and of those in controversy, together with the substance
Petitioners are adamant, however, that they complied with the required content specified in the of the proof relating thereto in sufficient detail to make it clearly intelligible, with page
references to the record;
xxxx
(f) Under the heading "Argument," the appellant's arguments on each assignment of error with
page references' to the record. The authorities relied upon shall be cited by the page of the
report at which the case begins and the page of the report on which the citation is found;
xxxx
Lui Enterprises' appellant's brief lacked a subject index, page references to the record, and
table of cases, textbooks and statutes cited. Under Rule 50, Section 1 of the 1997 Rules of
Civil Procedure, the Court of Appeals correctly dismissed Lui Enterprises' appeal.
Except for cases provided in the Constitution, appeal is a "purely statutory right."The right to
appeal "must be exercised in. the manner prescribed by law" and requires strict compliance
with the Rules of Court on appeals. Otherwise, the appeal shall be dismissed, and its dismissal
shall not be a deprivation of due process of law.
In Mendoza v. United Coconut Planters Bank, Inc., this court sustained the Court of Appeals'
dismissal of Mendoza's appeal. Mendoza's appellant's brief lacked a subject index, assignment
of errors, and page references to the record. In De Liano v. Court of Appeal, this court also
sustained the dismissal of De Liano's appeal. De Liano's appellant's brief lacked a subject
index, a table of cases and authorities, and page references to the record.
There are exceptions to this rule. In Philippine Coconut Authority v. Corona International,
Inc., the Philippine Coconut Authority's appellant's brief lacked a clear and "concise statement
of the nature of the action, a summary of the proceedings, the nature of the judgment, and page
references to the record. However, this court found that the Philippine Coconut Authority
substantially complied with the Rules. Its appellant's brief apprise[d] [the Court of Appeals] of
the essential facts and nature of the case as well as the issues raised and the laws necessary [to
dispose of the case]." This court "[deviated] from a rigid enforcement of the rules" and ordered
the Court of Appeals to resolve the Philippine Coconut Authority's appeal.
In Go v. Chaves, Go's 17-page appellant's brief lacked a subject index. However, Go
subsequently filed a subject index. This court excused Go's procedural lapse since the
appellant's brief "[consisted] only of 17 pages which [the Court of Appeals] may easily peruse
to apprise it of [the case] and of the relief sought." This court ordered the Court of Appeals to
resolve Go's appeal "in the interest of justice."
In Philippine Coconut Authority and Go, the appellants substantially complied with the rules
on the contents of the appellant's brief. Thus, this court excused the appellants' procedural
lapses.
In this case, Lui Enterprises did not substantially comply with the rules on the contents of the
appellant's brief. It admitted that its appellant's brief lacked the required subject index, page
references to the record, and table of cases, textbooks, and statutes cited. However, it did not
even correct its admitted "technical omissions" by filing an amended appellant's brief with the
required contents. Thus, this case does not allow a relaxation of the rules. The Court of
Appeals did not err in dismissing Lui Enterprises' appeal.
Rules on appeal "are designed for the proper and prompt disposition.of cases before the Court
of Appeals." With respect to the appellant's brief, its required contents are designed "to
minimize the [Court of Appeals'] labor in [examining] the record upon which the appeal is
heard and determined."
The subject index serves as the briefs table of contents. Instead of "[thumbing] through the
[appellant's brief]" every time the Court of Appeals Justice encounters an argument or citation,
the Justice deciding the case only has to refer to the subject index for the argument or citation
he or she needs. This saves the Court of Appeals time in reviewing the appealed case.
Efficiency allows the justices of the appellate court to substantially attend to this case as well
as other cases.
Page references to the record guarantee that the facts stated in the appellant's brief are
supported by the record. A statement of fact without a page reference to the record creates the
presumption that it is unsupported by the record and, thus, "may be stricken or disregarded
altogether."
As for the table of cases, textbooks, and statutes cited, this is required so that the Court of
Appeals can easily verify the authorities cited "for accuracy and aptness."
Lui Enterprises' appellant's brief lacked a subject index, page references to the record, and a
table of cases, textbooks, and statutes cited. These requirements "were designed to assist the
appellate court in the accomplishment of its tasks, and, overall, to enhance the orderly
administration of justice." This court will not disregard rules on appeal "in the guise of liberal
construction." For this court to liberally construe the Rules, the party must substantially
comply with the Rules and correct its procedural lapses. Lui Enterprises failed to remedy these
errors.
All told, the Court of Appeals did not err in dismissing Lui Enterprises' appeal. It failed to
comply with Rule 44, Section 13, paragraphs (a), (c), (d), and (f) of the 1997 Rules of Civil
Procedure on the required contents of the appellant's brief.
Third. While we sustain the appellate court's dismissal of herein petitioners' appeal, we find it
imperative to rule on the merits of the RTC, Branch 220's Order of Partition to forestall any
further delay in the settlement of decedent Arminda's estate which has been pending since
1990 where Order of Partition of the subject properties was issued on 28 July 2005. We note
also that petitioners themselves pray for a ruling thereon.
There is no quarrel from any of the parties that the subject properties were originally part of
the conjugal partnership of gains property regime of the deceased spouses Natalio and
Arminda.25 The nature of these properties as part of the spouses' conjugal properties was
confirmed in the Extrajudicial Settlement of the Estate of Natalio signed by all his heirs, his
spouse Arminda and their children, including predecessor of herein petitioners, Gerry
Ecarma.26
Essentially, pursuant to this Extrajudicial Settlement, Arminda was apportioned two-ninth's
(2/9's) share, while her children were equally ascribed one-ninth (1/9) portion, of the subject
properties. Upon Arminda's death, her heirs' rights to the succession (covering Arminda's
share in the subject properties) vested and their co-ownership over the subject properties has
consolidated by operation of law.27 Effectively, without a valid will of Arminda, and as
Arminda's compulsory heirs,28 herein parties (specifically Gerry Ecarma prior to his death and
substitution by herein petitioners) all ipso facto co-owned the subject properties in equal
proportion being compulsory heirs of the deceased spouses Natalio and Arminda. 29
There appears to be no clear objection, therefore, to the RTC, Branch 220's Order of Partition
approving the proposal of the administrator, herein respondent Renato, for the equal division with Article 49831 of the same Code, i.e. sale of the property and distribution of the proceeds.
of the properties: Ineluctably, therefore, herein petitioners' absolute opposition to the partition of the subject
properties which are co-owned has no basis in law. As mere co-owners, herein petitioners,
1. The Kitanlad property: longitudinally from the frontage down to the other end with the representing the share of the deceased Gerry Ecarma, cannot preclude the other owners
shares of the [oppositors to the partition] Jerry Ecarnia and Rodolfo Ecarma contiguous to likewise compulsory heirs of the deceased spouses Natalio and Arminda, from exercising all
each other on one side of the property nearest to the main entrance; and incidences of their full ownership.32

xxxx Wherefore, the petition is DISMISSED. The Court of Appeal's dismissal of the Appeal in
CA-G.R. CV No. 92375 is FINAL. Costs against petitioners.
2. The Cuyapo and Lala properties: partitioned into seven (7) equal parts with Jerry's and
Rodolfo's respective shares contiguous to each other, and the remainder to be donated by the SO ORDERED.cralawlawlibrary
other legal heirs, as manifested by them, to the Armed Forces of the Philippines (AFP).

Their objection to the actual partition notwithstanding, herein petitioners and even Rodolfo
Ecarma cannot compel the other co-heirs to remain in perpetual co-ownership over the subject
properties. Article 494, in relation to Article 1083, of the Civil Code provides:

Art. 494. No co-owner shall be obliged to remain in the co-ownership. Each co-owner may
demand at any time the partition of the thing owned in common, insofar as his share is
concerned.

Nevertheless, an agreement to keep the thing undivided for a certain period of time, not
exceeding ten years, shall be valid. This term may be extended by a new agreement.

A donor or testator may prohibit partition for a period which shall not exceed twenty years.

Neither shall there be any partition when it is prohibited by law.

No prescription shall run in favor of a co-owner or co-heir against his co-owners or co-heirs so
long as he expressly or impliedly recognizes the co-ownership.

Art. 1083. Every co-heir has a right to demand the division of the estate unless the testator
should have expressly forbidden its partition, in which case the period of indivision shall not
exceed twenty years as provided in Article 494. This power of the testator to prohibit division
applies to the legitime.

Even though forbidden by the testator, the co-ownership terminates when any of the causes for
which partnership is dissolved takes place, or when the court finds for compelling reasons that
division should be ordered, upon petition of one of the co-heirs.

The impasse between the parties is due to herein petitioners' persistent objection to proposals
for the partition of the subject properties. The deceased Gerry Ecarma, Rodolfo Ecarma and
herein petitioners consistently opposed the proposed partition of the administrator, respondent
Renato, since such is ostensibly "not feasible, impractical and renders detrimental use of the
Kitanlad property." However, it is apparent that Gerry Ecarma and his heirs (herein
petitioners) completely object to any kind of partition of the subject properties, contravening
even the proposed sale thereof.

We note that petitioners have been careful not to proffer that the subject properties are
indivisible or that physical division of thereof would render such unserviceable since Article
49530 of the Civil Code provides the remedy of termination of co-ownership in accordance
[G.R. No. 76351. October 29, 1993.] On 20 April 1979, Atty. Manuel S. Tonogbanua, counsel for respondent, filed a motion to
VIRGILIO B. AGUILAR, Petitioner, v. COURT OF APPEALS and SENEN B. cancel pre-trial on the ground that he would be accompanying his wife to Dumaguete City
AGUILAR, Respondents. Jose F. Manacop for Petitioner. where she would be a principal sponsor in a wedding. On 23 April 1979, finding the reasons
of counsel to be without merit, the trial court denied the motion and directed that the pre-trial
Siruelo, Muyco & Associates Law Office for Private Respondent.
should continue as scheduled.
DECISION
BELLOSILLO, J.: When the case was called for pre-trial as scheduled on 26 April 1979, plaintiff and his counsel
appeared. Defendant did not appear; neither his counsel in whose favor he executed a special
This is a petition for review on certiorari seeking to reverse and set aside the Decision of the power of attorney to represent him at the pre-trial. Consequently, the trial court, on motion of
Court of Appeals in CA-GR CV No. 03933 declaring null and void the orders of 23 and 26 plaintiff, declared defendant as in default and ordered reception of plaintiff’s evidence ex
April 1979, the judgment by default of 26 July 1979, and the order of 22 October 1979 of the parte.
then Court of First Instance of Rizal, Pasay City, Branch 30, and directing the trial court to set
the case for pre-trial conference. On 7 May 1979, defendant through counsel filed an omnibus motion to reconsider the order of
default and to defer reception of evidence. The trial court denied the motion and plaintiff
Petitioner Virgilio and respondent Senen are brothers; Virgilio is the youngest of seven (7) presented his evidence. On 26 July 1979, rendering judgment by default against defendant, the
children of the late Maximiano Aguilar, while Senen is the fifth. On 28 October 1969, the two trial court found him and plaintiff to be co-owners of the house and lot in equal shares on the
brothers purchased a house and lot in Parañaque where their father could spend and enjoy his basis of their written agreement. However, it ruled that plaintiff has been deprived of his
remaining years in a peaceful neighborhood. Initially, the brothers agreed that Virgilio’s share participation in the property by defendant’s continued enjoyment of the house and lot, free of
in the co-ownership was two-thirds while that of Senen was one-third. By virtue of a written rent, despite demands for rentals and continued maneuvers of defendant to delay partition. The
memorandum dated 23 February 1970, Virgilio and Senen agreed that henceforth their trial court also upheld the right of plaintiff as co-owner to demand partition. Since plaintiff
interests in the house and lot should be equal, with Senen assuming the remaining mortgage could not agree to the amount offered by defendant for the former’s share, the trial court held
obligation of the original owners with the Social Security System (SSS) in exchange for his that the property should be sold to a third person and the proceeds divided equally between the
possession and enjoyment of the house together with their father.chanrobles lawlibrary : parties.
rednad
The trial court likewise ordered defendant to vacate the property and pay plaintiff P1,200.00 as
Since Virgilio was then disqualified from obtaining a loan from SSS, the brothers agreed that rentals 2 from January 1975 up to the date of decision plus interest from the time the action
the deed of sale would be executed and the title registered in the meantime in the name of was filed.
Senen. It was further agreed that Senen would take care of their father and his needs since
Virgilio and his family were staying in Cebu. On 17 September 1979, defendant filed an omnibus motion for new trial but on 22 October
1979 the trial court denied the motion.
After Maximiano Aguilar died in 1974, petitioner demanded from private respondent that the
latter vacate the house and that the property be sold and proceeds thereof divided among them. Defendant sought relief from the Court of Appeals praying that the following orders and
decision of the trial court be set aside: (a) the order of 23 April 1970 denying defendant’s
Because of the refusal of respondent to give in to petitioner’s demands, the latter filed on 12 motion for postponement of the pre-trial set on 26 April 1979; (b) the order of 26 April 1979
January 1979 an action to compel the sale of the house and lot so that the they could divide the declaring him in default and authorizing plaintiff to present his evidence ex-parte; (c) the
proceeds between them. default judgment of 26 July 1979; and, (d) the order dated 22 October 1979 denying his
omnibus motion for new trial.
In his complaint, petitioner prayed that the proceeds of the sale be divided on the basis of two-
thirds (2/3) in his favor and one-third (1/3) to Respondent. Petitioner also prayed for monthly On 16 October 1986, the Court of Appeals set aside the order of the trial court of 26 April 1979 as well as
rentals for the use of the house by respondent after their father died.chanrobles virtual the assailed judgment rendered by default. The appellate court found the explanation of counsel for
lawlibrary defendant in his motion to cancel pre-trial as satisfactory and devoid of a manifest intention to delay the
disposition of the case. It also ruled that the trial court should have granted the motion for postponement
In his answer with counterclaim, respondent alleged that he had no objection to the sale as filed by counsel for defendant who should not have been declared as in default for the absence of his
long as the best selling price could be obtained; that if the sale would be effected, the proceeds counsel.chanrobles law library : red
thereof should be divided equally; and, that being a co-owner, he was entitled to the use and
Petitioner now comes to us alleging that the Court of Appeals erred (1) in not holding that the motion of
enjoyment of the property. defendant through counsel to cancel the pre-trial was dilatory in character and (2) in remanding the case to
the trial court for pre-trial and trial.
Upon issues being joined, the case was set for pre-trial on 26 April 1979 with the lawyers of
both parties notified of the pre-trial and served with the pre-trial order, with private respondent The issues to be resolved are: whether the trial court correctly declared respondent as in
executing a special power of attorney to his lawyer to appear at the pre-trial and enter into any default for his failure to appear at the pre-trial and in allowing petitioner to present his
amicable settlement in his behalf. 1 evidence ex-parte, and whether the trial court correctly rendered the default judgment
against Respondent.

We find merit in the petition.
As regards the first issue, the law is clear that the appearance of parties at the pre-trial is
mandatory. 3 A party who fails to appear at a pre-trial conference may be non-suited or
considered as in default. 4 In the case at bar, where private respondent and counsel failed to
appear at the scheduled pre-trial, the trial court has authority to declare respondent in default.
5 that whenever the thing is essentially indivisible and the co-owners cannot agree that it be
Although respondent’s counsel filed a motion to postpone pre-trial hearing, the grant or denial
thereof is within the sound discretion of the trial court, which should take into account two
factors in the grant or denial of motions for postponement, namely: (a) the reason for the
postponement and (b) the merits of the case of movant. 6 owners are not in agreement as to who among them shall be allotted or assigned the entire
In the instant case, the trial court found the reason stated in the motion of counsel for
respondent to cancel the pre-trial to be without merit. Counsel’s explanation that he had to go
to Iloilo by boat as early as 25 March 1979 to fetch his wife and accompany her to a wedding
in Dumaguete City on 27 April 1979 where she was one of the principal sponsors, cannot be
accepted. We find it insufficient to justify postponement of the pre-trial, and the Court of
Appeals did not act wisely in overruling the denial. We sustain the trial court and rule that it
did not abuse its discretion in denying the postponement for lack of merit. Certainly, to
warrant a postponement of a mandatory process as pre-trial would require much more than
mere attendance in a social function. It is time indeed we emphasize that there should be much
more than mere perfunctory treatment of the pre-trial procedure. Its observance must be taken
seriously if it is to attain its objective., i.e., the speedy and inexpensive disposition of
cases.chanrobles law library : red
Moreover, the trial court denied the motion for postponement three (3) days before the
scheduled pre-trial. If, indeed, counsel for respondent could not attend the pre-trial on the
scheduled date, respondent at least should have personally appeared in order not to be declared
as in default. But, since nobody appeared for him, the order of the trial court declaring him as
in default and directing the presentation of petitioner’s evidence ex parte was proper. 7
With regard to the merits of the judgment of the trial court by default, which respondent
appellate court did not touch upon in resolving the appeal, the Court holds that on the basis of
the pleadings of the parties and the evidence presented ex parte, petitioner and respondents are
co-owners of subject house and lot in equal shares; either one of them may demand the same
of the house and lot at any time and the other cannot object to such demand; thereafter the
proceeds of the sale shall be divided equally according to their respective interests.
Private respondent and his family refuse to pay monthly rentals to petitioner from the time
their father died in 1975 and to vacate the house so that it can be sold to third persons.
Petitioner alleges that respondent’s continued stay in the property hinders its disposal to the
prejudice of petitioner. On the part of petitioner, he claims that he should be paid two-thirds
(2/3) of a monthly rental of P2,400.00 or the sum of P1,600.00.
In resolving the dispute, the trial court ordered respondent to vacate the property so that it
could be sold to third persons and the proceeds divided between them equally, and for
respondent to pay petitioner one-half (1/2) of P2,400.00 or the sum of P1,200.00 as monthly
rental, conformably with their stipulated sharing reflected in their written agreement.
We uphold the trial court in ruling in favor of petitioner, except as to the effectivity of the
payment of monthly rentals by respondent as co-owner which we here declare to commence
only after the trial court ordered respondent to vacate in accordance with its order of 26 July
1979.chanrobles law library
Article 494 of the Civil Code provides that no co-owner shall be obliged to remain in the co-
ownership, and that each co-owner may demand at any time partition of the thing owned in
common insofar as his share is concerned. Corollary to this rule, Art. 498 of the Code states
allotted to one of them who shall indemnify the others, it shall be sold and its proceeds
accordingly distributed. This is resorted to (1) when the right to partition the property is
invoked by any of the co-owners but because of the nature of the property it cannot be
subdivided or its subdivision would prejudice the interests of the co-owners, and (b) the co-
property upon proper reimbursement of the co-owners. In one case, 8 this Court upheld the
order of the trial court directing the holding of a public sale of the properties owned in
common pursuant to Art. 498 of the Civil Code.
However, being a co-owner respondent has the right to use the house and lot without paying
any compensation to petitioner, as he may use the property owned in common so long as it is
in accordance with the purpose for which it is intended and in a manner not injurious to the
interest of the other co-owners. 9 Each co-owner of property held pro indiviso exercises his
rights over the whole property and may use and enjoy the same with no other limitation than
that he shall not injure the interests of his co-owners, the reason being that until a division is
made, the respective share of each cannot be determined and every co-owner exercises,
together with his co-participants joint ownership over the pro indiviso property, in addition to
his use and enjoyment of the same. 10
Since petitioner has decided to enforce his right in court to end the co-ownership of the house
and lot and respondent has not refuted the allegation that he has been preventing the sale of the
property by his continued occupancy of the premises, justice and equity demand that
respondent and his family vacate the property so that the sale can be effected immediately. In
fairness to petitioner, respondent should pay a rental of P1,200.00 per month, with legal
interest from the time the trial court ordered him to vacate, for the use and enjoyment of the
other half of the property appertaining to petitioner.
When petitioner filed an action to compel the sale of the property and the trial court granted
the petition and ordered the ejectment of respondent, the co-ownership was deemed terminated
and the right to enjoy the possession jointly also ceased. Thereafter, the continued stay of
respondent and his family in the house prejudiced the interest of petitioner as the property
should have been sold and the proceeds divided equally between them. To this extent and from
then on, respondent should be held liable for monthly rentals until he and his family vacate.
WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated 16
October 1986 is REVERSED and SET ASIDE. The decision of the trial court in Civil Case No. 6912-P
dated 26 July 1979 is REINSTATED, with the modification that respondent Senen B. Aguilar is ordered
to vacate the premises in question within ninety (90) days from receipt of this decision, and to pay
petitioner Virgilio B. Aguilar a monthly rental of P1,200.00 with interest at the legal rate from the time he
received the decision of the trial court directing him to vacate until he effectively leaves the
premises.chanrobles law library : red
The trial court is further directed to take immediate steps to implement this decision conformably with
Art. 498 of the Civil Code and the Rules of Court. This decision is final and executory. SO ORDERED.
G.R. No. 196403, December 07, 2016 common by them and the Defendants-Appellants but the latter does not give them any share in
the fruits thereof. Hence, they asked for partition but the Defendants-Appellants refused
ARSENIO TABASONDRA, FERNANDO TABASONDRA, CORNELIO without valid reasons. They maintained that they tried to amicably settle the dispute before the
TABASONDRA, JR., MIRASOL TABASONDRA-MARIANO, FAUSTA Lupon, but to no avail. Thus, their filing of the suit praying that the subject land be partitioned,
TABASONDRA-TAPACIO, GUILLERMO TABASONDRA, MYRASOL that new titles be issued in their respective names, that the Defendants-Appellants be ordered
TABASONDRA-ROMERO, AND MARLENE TABASONDRA- to render an accounting on the fruits thereon, and that such fruits also be partitioned.
MANIQUIL, Petitioners, v. SPOUSES CONRADO CONSTANTINO AND TARCILA
TABASONDRA-CONSTANTINO,* PACITA ARELLANO-TABASONDRA AND In their Answer, the Defendants-Appellants averred that they do not object to a partition
HEIRS OF SEBASTIAN TABASONDRA, Respondents. provided that the same should be made only with respect to Cornelio's share. They contended
that they already own the shares of Valentina and Valeriana in the subject land by virtue of the
Deed of Absolute Sale that the said sisters executed in their favor on August 18, 1982.
DECISION Moreover, they alleged that the Plaintiffs-Appellees are the ones who should account for the
BERSAMIN, J.:
This case for partition and accounting concerns a property owned in common, and focuses on the right of
profits of the property because it is the latter who enjoy the fruits thereof. By way of
two of the co-owners to alienate their shares before the actual division of the counterclaim, they, thus, prayed that the Plaintiffs-Appellees be ordered to render an
property.chanroblesvirtuallawlibrary accounting and to pay for damages.
The Case
After the issues were joined and the pre-trial conference was conducted, a full blown trial
Under appeal is the adverse decision promulgated on November 30, 20101 whereby the Court of Appeals followed in view of the parties' failure to settle amicably.
(CA) modified the judgment rendered on September 22, 2008 by the Regional Trial Court (RTC), Branch
64, in Tarlac City ordering the partition of all the three parcels of land owned in common among the
On September 22, 2008, the RTC rendered the assailed disposition, the fallo of which reads:
parties.2 The modification by the CA, which expressly recognized the alienation by the two co-owners of
their shares, consisted in limiting the partition of the property owned in common to only the unsold
WHEREFORE, on the basis of the foregoing considerations, judgment is hereby rendered in
portion with an area of 33,450.66 square meters. favor of the plaintiffs, ordering [the] partition of the three (3) parcels of land covered by TCT
Antecedents No. 16012 among the compulsory and legal heirs of Cornelio, Valentina[,] and Valeriana, all
surnamed Tabasondra. Sotero Duenas Tabasondra shall be entitled to 3,040 square meters
The parties herein were the children of the late Cornelio Tabasondra from two marriages. The while plaintiffs and defendants shall be entitled to 6,690 square meters each.
respondents Tarcila Tabasondra-Constantino and the late Sebastian Tabasondra were the
children of Cornelio by his first wife, Severina; the petitioners, namely: Arsenio Tabasondra, SO ORDERED.3
Fernando Tabasondra, Cornelio Tabasondra, Jr., Mirasol Tabasondra-Mariano, Fausta
Tabasondra-Tapacio, Myrasol Tabasondra-Romero, Marlene Tabasondra-Maniquil, and Dissatisfied, the respondents appealed the judgment of the RTC to the CA, assigning the
Guillermo Tabasondra, were children of Cornelio by his second wife, Sotera. following as the reversible errors, to wit:
I. THE HONORABLE COURT A- [sic] QUO GRAVELY ERRED AND COMMITTED A
The CA summarized the undisputed factual findings and procedural antecedents as REVERSIBLE ERROR IN NOT CONSIDERING AND APPRECIATING THE FACT
follows:chanRoblesvirtualLawlibrary THAT THE DEED OF ABSOLUTE SALE EXECUTED BY THE DECEASED
Cornelio, Valentina, and Valeriana, all surnamed Tabasondra. were siblings. They were also VALENTINA TABASONDRA AND VALERIANA TABASONDRA, IN FAVOR OF
the registered owners of the three (3) parcels of land located at Dalayap, Tarlac City, identified DEFENDANTS TARCILA TABASONDRA AND SEBASTIAN TABASONDRA, WAS
as Lot No. 2536, containing an area of seventy-seven thousand one hundred and forty-seven VALID AND SUBSISTING AT THE TIME THE COURT CONSIDERED IT TO HAVE NO
(77,147) sq. m.; Lot No. 3155, with an area of thirteen thousand six hundred fifty-nine VALID LEGAL FORCE AND EFFECT[.]
(13,659) sq. m.; and, Lot No. 3159, with an area of nine thousand five hundred forty-six II. THE HONORABLE COURT A-[sic] QUO GRAVELY ERRED AND COMMITTED A
(9,546) sq. m., covered by Transfer Certificate of Title (TCT) No. 106012. REVERSIBLE ERROR IN ORDERING FOR THE PARTITION OF THE PROPERTY IN
QUESTION WITHOUT ANY LEGAL AND VALID GROUNDS[.] 4
x x x x
On November 30, 2010, the CA promulgated the decision under
Cornelio died on March 15, 1991, while Valentina and Valeriana both died single on August review,5 disposing:chanRoblesvirtualLawlibrary
19, 1990 and August 4, 1998, respectively. They all died intestate and without partitioning the WHEREFORE, the appeal is GRANTED. The assailed disposition
property covered by TCT No. 106012. Thus, the Plaintiffs-Appellees and the Defendants- is AFFIRMED with MODIFICATION in that the partition and the accounting is ordered to
Appellants, as descendants of Cornelio, possessed and occupied the property. be made only with respect to a thirty-three thousand four hundred fifty point sixty-six
(33,450.66) sq.m. portion of the property. With costs.
The Controversy:
SO ORDERED.6
On August 22, 2002, the Plaintiffs-Appellees filed the complaint below against the
Defendants-Appellants. In essence, they claimed that the parcels of land are owned in The petitioners moved for reconsideration,7 but the CA denied their motion on April 4, 2011. 8
 Hence, this appeal.
Issues
The petitioners submit in support of their appeal:
1. THAT THE COURT OF APPEALS ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING
TO EXCESS OR LACK OF JURISDICTION IN SUMMARILY DISMISSING THE NEW MATTERS
OF SUBSTANCE RAISED IN MOTION FOR RECONSIDERATION
2. THAT THE COURT OF APPEALS IN SUMMARILY DISMISSING MOTION FOR
RECONSIDERATION OF PLAINTIFFS-PETITIONERS RENEGED IN ITS DUTY TO RESOLVE
LEGAL AND FACTUAL ISSUES OF SUBSTANCE IN A WAY NOT PROBABLY IN ACCORD
WITH LAW OR APPLICABLE DECISIONS OF THE SUPREME COURT;ChanRoblesVirtualawlibrary
3. THAT THE COURT OF APPEALS DECISION IN DECLARING THE QUESTIONED DEED OF
SALE VALID AND IN SUMMARILY DISMISSING PLAINTIFFS-PETITIONERS['] MOTION FOR
RECONSIDERATION RAISING NEW ARGUMENTS AND MATTERS OF SUBSTANCE NOT
RAISED IN THE APPEAL BY DEFENDANTS-RESPONDENTS, ARE CONTRARY TO LAW,
JURISPRUDENCE, ADMISSIONS OF FACTS/TESTIMONY OF TARCILA TABASONDRA, ONLY
WITNESS FOR DEFENDANTS-RESPONDENTS AND EVIDENCE PRESENTED BY PLAINTIFFS-
PETITIONERS AT THE TRIAL;ChanRoblesVirtualawlibrary
4. THAT SUCH COURSE OF ACTION TAKEN BY THE COURT OF APPEALS OR DEPARTURE
THEREFROM IN EXERCISING OR FAILING TO EXERCISE ITS POWER OF JUDICIAL REVIEW
CERTAINLY CALLS FOR THE EXERCISE BY THE SUPREME COURT OF ITS POWER OF
JUDICIAL REVIEW TO AFFORD COMPLETE RELIEF TO PARTIES IN THIS CASE AND TO
AVOID MULTIPLICITY OF SUITS.9
In other words, did the CA correctly order the partition and accounting with respect to only
33,450.66 square meters of the property registered under TCT No. 10612?
Ruling of the Court
The appeal lacks merit.
There is no question that the total area of the three lots owned in common by Cornelio,
Valentina and Valeriana was 100,352 square meters; and that each of the co-owners had the
right to one-third of such total area.
It was established that Valentina and Valeriana executed the Deed of Absolute Sale,10 whereby
they specifically disposed of their shares in the property registered under TCT No. 10612 in
favor of Sebastian Tabasondra and Tarcila Tabasondra as
follows:chanRoblesvirtualLawlibrary
NOW, THEREFORE, for and in consideration of the sum of TEN THOUSAND PESOS
(10,000.00), Philippine Currency, to us in hand paid, receipt whereof is hereby acknowledged
in full to our entire satisfaction, by SEBASTIAN TABASONDRA and TARCILA
TABASONDRA, married to Pacita Arellano and Conrado Constantino, respectively, both of
legal ages, Filipinos, and residents of Dalayap, Tarlac, Tarlac, we do hereby SELL, CEDE,
TRANSFER and CONVEY, by way of ABSOLUTE SALE, unto the said Sebastian
Tabasondra and Tarcila Tabasondra, their heirs and assigns, all our shares, rights, interests
and participations in the above-described parcel of land free from liens and incumbrances.
That we hereby certify that the herein VENDEES are the actual tillers or tenants of the above-
described parcel of land subject matter of this deed of absolute sale and, as such, have the
prior right of pre-emption and redemption, under the Land Reform Code. (Bold underscoring
supplied for emphasis)
We uphold the right of Valentina and Valeriana to thereby alienate their pro indiviso shares to
Sebastian and Tarcila even without the knowledge or consent of their co-owner Cornelio
because the alienation covered the disposition of only their respective interests in the common
property. According to Article 493 of the Civil Code, each co-owner "shall have the full
ownership of his part and of the fruits and benefits pertaining thereto, and he may therefore
alienate, assign or mortgage it, and even substitute another person in its enjoyment, except
when personal rights are involved," but "the effect of the alienation or the mortgage, with
respect to the co-owners, shall be limited to the portion which may be allotted to him in the
division upon the termination of the co-ownership." Hence, the petitioners as the successors-
in-interest of Cornelio could not validly assail the alienation by Valentina and Valeriana of
their shares in favor of the respondents.11
Accordingly, the Court declares the following disposition by the CA to be correct and in full
accord with law, to wit:
x x x [T]here is no dispute that the subject property was owned in common by the siblings
Cornelio, Valentina, and Valeria. Corollarily, the records at bench glaringly show that the
genuineness and due execution of the Deed of Absolute Sale executed by Valeriana and
Valentina in favor of the Defendants-Appellants was not rebutted by the Plaintiffs-Appellees.
A fortiori, such deed is prima facie evidence that a contract of sale was, indeed, entered into
and consummated between Valeriana and Valentina as sellers and the Defendants-Appellants
as vendors.
The foregoing facts, juxtaposed with the laws and the jurisprudential precepts mentioned
elsewhere herein, lead to no other conclusion but that the sale by Valeriana and Valentina of
their pro indiviso shares in favor of the Defendants-Appellants is valid. As enunciated by the
Supreme Court in Alejandrino v. CA, et al.:
x x x Under a co-owners/tip, the ownership of an undivided thing or right belongs to
different persons. Each co-owner of property which is held pro indiviso exercises his rights
over the whole property and may use and enjoy the same with no other limitation than that
he shall not injure the interests of his co-owners. The underlying rationale is that until a
division is made, the respective share of each cannot be determined and every co-owner
exercises, together with his co-participants, joint ownership over the pro indiviso property, in
addition to his use and enjoyment of the same.
Although the right of a heir over the property of the decedent is inchoate as long as the
estate has not been fully settled and partitioned, the law allows a co-owner to exercise rights
of ownership over such inchoate right. Thus, the Civil Code provides:
Art. 493. Each co-owner shall have the full ownership of his part and of the fruits and
benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even
substitute another person in its enjoyment, except when personal rights are involved But the
effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the
portion which may be allotted to him in the division upon the termination of the co-
ownership.
With respect to properties shared in common by virtue of inheritance, alienation of a pro
indiviso portion thereof is specifically governed by Article 1088 that provides:
Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the
partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by
reimbursing him for the price of the sale, provided they do so within the period of one
month from the time they were notified in writing of the sale by the vendor.

In the instant case, Laurencia was within her hereditary rights in selling her pro indiviso
share in Lot No. 2798. However, because the property had not yet been partitioned in
accordance with the Rules of Court, no particular portion of the property could be identified
as yet and delineated as the object of the sale. Thus, interpreting Article 493 of the Civil Code
providing that an alienation of a co-owned property "shall be limited to the portion which may
be allotted to (the seller) in the division upon the termination of the co-ownership, the Court
said:
... (p)ursuant to this law, a co-owner has the right to alienate his pro-indiviso share in the
co-owned property even witlwut the consent of the other co-owners. x x x
Using the foregoing disquisitions as guidelines, there is no denying that the RTC erred in
granting the complaint and ordering a partition without qualifying that such should not include
the shares previously pertaining to Valeria and Valentina. Simply put, since the aggregate area
of the subject property is one hundred thousand three hundred fifty-two (100,352) sq.m., it
follows that Cornelio, Valentina, and Valeriana each has a share equivalent to thirty-three
thousand four hundred fifty point sixty-six (33,450.66) sq. m. portion thereof. Accordingly,
when Valentina and Valeriana sold their shares, the Defendants-Appellants became co-owners
with Cornelio. Perforce, upon Cornelio's death, the only area that his heirs, that is, the
Plaintiffs-Appellees and the Defendants-Appellants, are entitled to and which may be made
subject of partition is only a thirty-three thousand four hundred fifty point sixty-six
(33,450.66) sq.m. portion of the property.
All told, finding the RTC's conclusions to be not in accord with the law and jurisprudence,
necessarily, the same cannot be sustained.12
chanrobleslaw
As a result of Valentina and Valeriana's alienation in favor of Sebastian and Tarcila of
their pro indiviso shares in the three lots, Sebastian and Tarcila became co-owners of the
100,352-square meter property with Cornelio (later on, with the petitioners who were the
successors-in-interest of Cornelio). In effect, Sebastian and Tarcila were co-owners of two-
thirds of the property, with each of them having one-third pro indiviso share in the three lots,
while the remaining one-third was co-owned by the heirs of Cornelio, namely, Sebastian,
Tarcila and the petitioners.
Nonetheless, we underscore that this was a case for partition and accounting. According
to Vda. de Daffon v. Court of Appeals,13 an action for partition is at once an action for
declaration of co-ownership and for segregation and conveyance of a determinate portion of
the properties involved. If the trial court should find after trial the existence of co-ownership
among the parties, it may and should order the partition of the properties in the same action. 14
Although the CA correctly identified the co-owners of the three lots, it did not segregate the
100,352-square meter property into determinate portions among the several co-owners. To do
so, the CA should have followed the manner set in Section 11, Rule 69 of the Rules of
Court, to wit:
Section 11. The judgment and its effect; copy to be recorded in registry of deeds. If actual
partition of property is made, the judgment shall state definitely, by metes and bounds and
adequate description, the particular portion of the real estate assigned to each party, and the
effect of the judgment shall be to vest in each party to the action in severalty the portion of the
real estate assigned to him. xxxs (Bold emphasis supplied.)
chanrobleslaw
Accordingly, there is a need to remand the case to the court of origin for the purpose of
identifying and segregating, by metes and bounds, the specific portions of the three lots
assigned to the co-owners, and to effect the physical partition of the property in the following
proportions: Tarcila, one-third; the heirs of Sebastian, one-third; and the petitioners
(individually), along with Tarcila and the heirs of Sebastian (collectively), one-third. That
physical partition was required, but the RTC and the CA uncharacteristically did not require it.
Upon remand, therefore, the RTC should comply with the express terms of Section 2, Rule 69
of the Rules of Court, which provides:
Section 2. Order for partition, and partition by agreement thereunder. - If after the trial the
court finds that the plaintiff has the right thereto, it shall order the partition of the real estate
among all the parties in interest. Thereupon the parties may, if they are able to agree,
make the partition among themselves by proper instruments of conveyance, and the
court shall confirm the partition so agreed upon by all the parties, and such partition,
together with the order of the court confirming the same, shall be recorded in the
registry of deeds of the place in which the property is situated.(2a)
A final order decreeing partition and accounting may be appealed by any party aggrieved
thereby. (n)
chanrobleslaw
Should the parties be unable to agree on the partition, the next step for the RTC will be to
appoint not more than three competent and disinterested persons as commissioners to make
the partition, and to command such commissioners to set off to each party in interest the part
and proportion of the property as directed in this decision.15
Moreover, with the Court having determined that the petitioners had no right in the two-thirds
portion that had been validly alienated to Sebastian and Tarcila, the accounting of the fruits
shall only involve the one-third portion of the property inherited from Cornelio. For this
purpose, the RTC shall apply the pertinent provisions of the Civil Code, particularly Article
500 and Article 1087 of the Civil Code, viz.:
Article 500. Upon partition, there shall be a mutual accounting for benefits received and
reimbursements for expenses made. Likewise, each co-owner shall pay for damages caused by
reason of his negligence or fraud. (n)
Article 1087. In the partition the co-heirs shall reimburse one another for the income and fruits
which each one of them may have received from any property of the estate, for any useful and
necessary expenses made upon such property, and for any damage thereto through malice or
neglect. (1063)
WHEREFORE, the Court AFFIRMS WITH MODIFICATION the decision of the Court
of Appeals promulgated on November 30, 2010 in CA-G.R. CV No. 92920 in that the
accounting is to be made only with respect to the fruits of the one-third portion of the property
still under the co-ownership of all the parties; REMANDS the case to the Regional Trial
Court, Branch 64, in Tarlac City for further proceedings in accordance with this decision, and
to determine the technical metes and bounds and description of the proper share of each co-
owner of the property covered by Transfer Certificate of Title No. 10612, including the
improvements thereon, in accordance with the Civil Code and Rule 69 of the Rules of
Court; and ORDERS the petitioners to pay the costs of suit.
SO ORDERED.
G.R. No. 156078 March 14, 2008
HEIRS OF CESAR MARASIGAN namely: LUZ REGINA, CESAR JR., BENITO,
SANTIAGO, RENATO, JOSE, GERALDO, ORLANDO, PETER, PAUL, MAURICIO,
ROMMEL, MICHAEL, GABRIEL, and MARIA LUZ, all surnamed
MARASIGAN, Petitioners,
vs.
APOLONIO, LILIA, OCTAVIO, JR., HORACIO, BENITO Jr., and MARISSA, all
surnamed MARASIGAN, and the COURT OF APPEALS, Respondents.
DECISION
CHICO-NAZARIO, J.:
This is a Petition for Review under Rule 45 of the Revised Rules of Court, with petitioners
praying for the reversal of the Decision1 of the Court of Appeals dated 31 July 2002 and its
Resolution2 dated 13 November 2002 denying the Petition for Certiorari and Prohibition, with
prayer for the issuance of a writ of preliminary injunction and restraining order, in CA- G.R.
SP No. 67529. Petitioners are asking this Court to (a) give due course to their petition; and (b)
reverse and set aside, and thus, declare null and void the Decision of the Court of Appeals in
CA-G.R. SP No. 67529. However, petitioners are asking for the following reliefs in their
Memorandum: (a) the dismissal of the complaint for partition of the estate of the late Alicia
Marasigan, docketed as Special Civil Action No. P-77-97, filed before the Regional Trial
Court (RTC) of Pili, Camarines Sur; (b) annulment or rescission of the public auction sale of
petitioners’ 1/7th undivided share in the estate of Alicia Marasigan, and direct Apolonio
Marasigan to restore the same to petitioners; or (c) in the alternative, allowance of the physical
partition of the entire 496 hectares of Hacienda Sta. Rita.
Central to the instant Petition is the estate of Alicia Marasigan (Alicia).
Alicia was survived by her siblings: Cesar, Apolonio, Lilia, and Benito; Marissa, a sister-in-
law; and the children of her brothers who predeceased her: Francisco, Horacio, and Octavio.
She died intestate and without issue on 21 January 1995.
On 17 December 1997, a Complaint for Judicial Partition of the Estate of Alicia Marasigan
was filed before the RTC by several of her heirs and private respondents herein, namely,
Apolonio, Lilia, Octavio, Jr., Horacio, Benito, Jr., and Marissa, against Cesar, docketed as
Special Civil Action No. P-77-97.
According to private respondents, Alicia owned in common with her siblings 13 parcels of
land called Hacienda Sta. Rita in Pili and Minalabac, Camarines Sur, with an aggregate area of
4,960,963 square meters or 496 hectares, and more particularly described as follows:
ORIGINAL CERTIFICATE OF TITLE NO. 626
"A parcel of land denominated as Lot 516-B of the Subdivision Survey Plan Csd-05-001020,
situated at Sagurong, Pili, Camarines Sur, bounded on the NE., by PNR; on the SE., by Bgy.
Road; on the SW., by Lot 2870; and on the NW., by Lot 512, containing an area of EIGHT
THOUSAND SEVEN HUNDRED TWELVE (8,712) SQUARE METERS, more or less,
declared under A.R.P. No. 014 166 and assessed at ₱12, 860.00."
ORIGINAL CERTIFICATE OF TITLE NO. 627
"A parcel of land denominated as Lot 4237, Cad-291, Pili Cadastre, Plan Cen-05-000006,
situated at Saguron, Pili, Camarines Sur, bounded on the N., by Irr. ditch beyond Lot 445; on
the E., by Lots 517 and 518; on the S., by Creek, Lot 468, 467; and on the W., by Lot 2948
and Mun. of Minalabac, containing an area of EIGHT HUNDRED SIXTY ONE THOUSAND
ONE HUNDRED SIXTY THREE (861,163) SQUARE METERS, more or less, declared
under A.R.P. No. 016 268 and assessed at ₱539,020.00."
ORIGINAL CERTIFICATE OF TITLE NO. 628
"A parcel of land denominated as Lot 2870 Cad. 291, Pili Cadastre Plan Swo-05000607,
situated at Sagurong, Pili, Camarines Sur, bounded on the N., by Binasagan River; on the E.,
by Lots 512 and 516; on the S., by Barangay Road; and on the W., by Lot 469, containing an
area of THIRTEEN THOUSAND FOUR HUNDRED SIXTY TWO (13,462) SQUARE
METERS, mote or less, declared under A.R.P. No. 014 130 and assessed at ₱15,180.00."
ORIGINAL CERTIFICATE OF TITLE NO. 629
"A parcel of land denominated as Lot 517-B of the Subdivision Survey Plan Csd-05-001020,
situated at Sagurong, Pili, Camarines Sur, bounded on the NE., by PNR; on the SE., by Lot
519; on the SW., by Lots 2025 and 2942; and on the NW., by Brgy. Road, containing an area
of THIRTEEN THOUSAND SEVEN HUNDRED SIXTY FIVE (13,765) SQUARE
METERS, more or less, declared under A.R.P. No. 014 167 and assessed at ₱20,310.00."
ORIGINAL CERTIFICATE OF TITLE NO. 652
"A parcel of land denominated as Lot 4207-B of the subdivision survey Plan Csd-05-011349-
D, situated at Sagurong (San Jose), Pili, Camarines Sur, bounded on the NE., by Lot 4207-C,
Lot 6157; on the SE., by Irr. ditch, Lot 2942; and on the NW., by Lot 4298 (3051-B),
containing an area of FIFTY FOUR (54) SQUARE METERS, mote or less, declared under
A.R.P. No. 014 384 and assessed at ₱40.00."
ORIGINAL CERTIFICATE OF TITLE NO. 653
"A parcel of land denominated as Lot 4207-A of the subdivision survey Plan Csd-05-011349-
D, situated at Sagurong (San Jose), Pili, Camarines Sur, bounded on the NE., by Lot 4205 (I0T
443-A Csd-05-001019); on the SE., and SW., by Irr. ditch (Lot 2942); on the W., by Lot 4207-
C Lot 6157; and on the NW., by Lot 4208 (Lot 3051-B, Csd-05-001019), containing an area of
TWENTY SEVEN THOUSAND THREE HUNDRED THIRTY SEVEN (27,33) SQUARE
METERS, more or less, declared under A.R.P. No. 014 383 and assessed at ₱20,150.00."
A.R.P. NO. 014 385
"A parcel of land denominated as Lot 4207-C Lot 6157 of the subdivision survey Plan Csd-05-
001019, situated at Sagurong (San Jose), Pili, Camarines Sur, bounded on the NE., by Lot
4207-A Lot 6155; on the SE., by Lot 4207-A Lot 6155; on the SW., by Lot 4207-B Lot 6156
and Irr, ditch; and on the NW., by Lot 4208 (3051-B), containing an area of THREE
HUNDRED SIXTY ONE (361) SQUARE METERS, more or less, declared under A.R.P. No.
014 385 and assessed at ₱270.00."
ORIGINAL CERTIFICATE OF TITLE NO. 654
"A parcel of land denominated as Lot 443-A of the subdivision survey Plan Csd-05-001019,
situated at Sagurong (San Jose), Pili, Camarines Sur, bounded on the NE., by Lots 474, 4019,
4018, 4027, creek; on the SE., by Hrs. of Benito Marasigan; and on the NW., by Lot 443-B,
Ireneo Llorin; containing an area of TWO HUNDRED FORTY FOUR THOUSAND EIGHT
HUNDRED FIFTY EIGHT (244,858) SQUARE METERS, more or less, declared under
A.R.P. No. 014 382 and assessed at ₱195,400.00."
ORIGINAL CERTIFICATE OF TITLE NO. 655
"A parcel of land denominated as Lot 2942-A of the subdivision survey Plan Csd-05-010854-
D, situated at Sagurong (San Jose/San Agustin), Pili, Camarines Sur, bounded on the N., by
Creek; on the NE., by Lot 3049; on the SE., by Creek; and on the W., by Lots 3184, 3183,
2942-13, 3183, 3060 and 3177; containing an area of FOUR HUNDRED SIXTY SIX
THOUSAND SIX HUNDRED TWENTY TWO (466,622) SQUARE METERS, more or less,
declared under A.R.P. No. 014 386 and assessed at ₱287,160.00."
ORIGINAL CERTIFICATE OF TITLE NO. 656
"A parcel of land denominated as Lot 2 Plan Cen-05-000007, situated at San Jose, Pili,
Camarines Sur, bounded on the N., by Lots 509 and 508, Binasagan River; on the E., by Lots
523, 521 and 520; on the S., by Lot 522; and on the W., by Phil. Nat’l. Railways; containing
an area of ONE HUNDRED FIVE THOUSAND TWO HUNDRED TWELVE (105,212)
SQUARE METERS, more or less, declared under A.R.P. No. 016 939 and assessed at
₱524,220.00."
ORIGINAL CERTIFICATE OF TITLE NO. 657
"A parcel of land denominated as Lot 1, Plan Cen-05-000007, situated at San Jose, Pili,
Camarines Sur, bounded on the N., by Lots 525, 526, 527; on the E., by Lots 528-A, 529, 530,
531, 532 and Nat’l. Road; on the S., by Lots 533 and 522 pt.; and on the W., by Lots 521, 523;
containing an area of FIFTY SIX THOUSAND SIX HUNDRED FIFTY TWO (56,652)
SQUARE METERS, more or less, declared under A.R.P. No. 016 993 and assessed at
₱292,090.00"
TRANSFER CERTIFICATE OF TITLE NO. 16841
"A parcel of land denominated as Lots 1 and 2, Plan II-10759, situated at Manapao,
Minalabac, Camarines Sur, bounded on the N., by Lots 3061, 3059, 4119, 3178, 3185, 3186,
3187, 3188, Borabodan Creek, 4350, 4401; and on the W., by Lots 4380, 3030, 3057. 3286,
3053, 3056; containing an area of TWO MILLION NINE HUNDRED TWENTY TWO
THOUSAND FIFTY NINE (2,922,059) SQUARE METERS, more or less, declared under
A.R.P. No. 014 0372 and assessed at ₱888,200.00."
TRANSFER CERTIFICATE OF TITLE NO. 16842
"A parcel of land denominated as Lot 443-A of Plan Psu-62335, situated at Manapao,
Minalaban, Camarines Sur (San Jose, Pili, Cam. Sur); bounded on the NE., by Shannon
Richmond and Eugenio Dato; on the E., by Eugenio Dato; on the S., by Eugenio Dato and
Creek; and on the SW and NW., by Shannon Richmond; containing an area of TWO
HUNDRED FORTY THOUSAND SEVEN HUNDRED SIX (240,706) SQUARE METERS,
more or less, declared under A.R.P. No. 014 245 and assessed at ₱146,830.00." 3
Alicia left behind her 2/21 shares in the afore-described 13 parcels of land.
In answer to the private respondents’ Complaint, Cesar enumerated Alicia’s several other
properties and assets which he also wanted included in the action for partition, to wit:
1. 1/8 share in the parcel of land covered by TCT No. 10947 located at Poblacion, San Juan, Batangas,
containing an area of 4,827 square meters, more or less;
2. 1/8 share in the parcel of land with improvements thereon (cockpit arena) located in Poblacion, San
Juan, Batangas covered by TCT No. 0-3255;
3. A parcel of commercial land under property Index No. 024-21-001-25-005 situated in Poblacion, San
Juan Batangas containing an area of 540 square meters, more or less;
4. A parcel of land situated in Yabo, Sipocot, Camarines Sur containing an area of 2,000 hectares and
covered by Tax Declaration No. 7546;
5. A parcel of land located at Brgy. Yabo, Sipocot, Camarines Sur with an area of 21,000 square meters,
more or less, covered by Tax Declaration No. 6622;
6. A parcel of land located at Brgy. Yabo, Sipocot, Camarines Sur with an area of 2,6750 hectares under
Tax Declaration No. 5352;
7. A parcel of land located at Barrio Yabo, Sipocot, Camarines Sur with an area of 2,3750 hectares and
covered by Tax Declaration No. 3653, and
8. Shares of Stock in Bolbok Rural Bank, Inc., a family owned rural bank consisting of 3,230 shares at
₱100.00 per share.4
Cesar’s request for inclusion was contested by private respondents on the ground that the
properties he enumerated had already been previously partitioned and distributed to the
appropriate parties.5
On 4 February 2000, the RTC decided in favor of private respondents and issued an Order of
Partition of the Estate of Alicia Marasigan, decreeing that:
As regards to [sic] the real properties located in Hacienda Sta. Rita in the municipalities of Pili
and Minilabac, Camarines Sur as described in par. 3 of the complaint, the actual area
representing the 2/21 pro-indiviso share having been determined consisting of 422,422.65 sq.
meters, more or less (Exhibit 0-2) therefore, the share of each heir of the late Alicia Marasigan
is 1/7 or equivalent to 67,496.09 square meters each (Exh. 0-3).
Wherefore, in view of the foregoing, decision is hereby rendered.
1. Ordering the partition of the estate of Alicia Marasigan in Hacienda Sta. Rita located in the
municipalities of Pili and Minalabac, Camarines Sur consisting of 422,422.65 sq. meters among her
surviving brothers and sisters namely: APOLONIO, LILIA, BENITO and CESAR, all surnamed
MARASIGAN who will inherit per capita and her nephews and nieces who are the children of deceased
brothers – the children of Francisco Marasigan and children of Horacio Marasigan who will inherit per
stirpes and Octavio Marasigan, Jr., who will inherit by right of representation of his deceased father,
Octavio Marasigan, Sr.
2. Declaring the partition of the San Juan, Batangas properties made by the heirs of Alicia Marasigan as
contained in the minutes of the Board Meeting of the Rural Bank of Bolbok valid and binding among
them.
3. Ordering the partition of the real properties located in San Juan, Batangas as shown and reflected in
Exhibits 1 to 10 inclusive presented by defendant, in the same sharing and proportion as provided in
paragraph one above-cited in this dispositive portion.
4. No pronouncement as to costs.6
As the parties could not agree on how they shall physically partition among themselves
Alicia’s estate, private respondents filed a Motion to Appoint Commissioners7 following the
procedure outlined in Sections 4, 5, 6 and 7 of Rule 69 of the Rules of Court, citing, among
other bases for their motion:
That unfortunately, the parties could not agree to make the partition among themselves which
should have been submitted for the confirmation of the Honorable Court more so because no
physical division could be had on the 2/21 pro-indiviso shares of the decedent [Alicia] due to
different locations, contours and conditions;
The RTC granted the Motion and appointed Myrna V. Badiong, Assistant Provincial Assessor
of Camarines Sur, as Chairman of the Board of Commissioners.8 Private respondents
nominated Sandie B. Dacara as the second commissioner. Cesar failed to nominate a third
commissioner despite due notice. Upon lapse of the period given, only two commissioners
were appointed.
On 26 October 2000, the two Commissioners conducted an ocular inspection of Hacienda Sta.
Rita, together with the Local Assessment Operations Officer IV of the Provincial Assessor’s
Office, the Barangay Agrarian Reform Committee (BARC) Chairman, and the Marasigans’
caretaker. However, Cesar contended that he did not receive any notice from the
Commissioners to attend the ocular inspection and he was, thus, not present on said occasion.
The Commissioners’ Report9 was released on 17 November 2000 stating the following
findings and recommendations:
The undersigned Commissioners admit the 472,472.65 (47.2472.65) square meters
representing the 2/21 pro-indiviso share of the deceased Alicia Marasigan and the 1/7 share of
each of the heirs of Alicia N. Marasigan equivalent to 67,496.09 square meters or 6.7496.09
hectares determined by Geodetic Engineer Roberto R. Revilla in his Compliance with the
Order of the Honorable Court dated November 18, 1998.
Considering that the physical division of the 2/21 pro-indiviso share of the decedent, Alicia
Marasigan cannot be done because of the different locations and conditions of the properties,
undersigned Commissioners hereby recommend that the heirs may assign their 1/7 share to
one of the parties willing to buy the same (Sec. 5, Rule 69 of the Rules of Court) provided he
pays to the heir[s] willing to assign his/her 1/7 share such amounts the Commissioners have
recommended and duly approved by the Honorable Court.
In consideration of such findings and after a careful and thorough deliberations by the
undersigned on the subject matter, considering the subject properties’ classification and actual
predominant use, desirability and demand and together with the benefits that may be derived
therefrom by the landowners, we have decided to recommend as it is hereby recommended
that the price of the 1/7 share of each of the heir[s] is ₱700,000.00 per hectare, thus:
₱700,000.00 x 6.7496.09 hectares = P4,724,726.30 or in words:
FOUR MILLION SEVEN HUNDRED TWENTY FOUR THOUSAND SEVEN HUNDRED TWENTY
SIX AND 30/100 PESOS FOR THE 1/7 SHARE (6.7496.09 HECTARES) OF EACH OF THE HEIRS.10
Cesar opposed the foregoing findings and prayed for the disapproval of the Commissioners’
Report. In his Comment/Opposition to the Commissioners’ Report, he maintained that:
He does not expect that he would be forced, to buy his co-owner’s share or to sell his share
instead. Had he known that it would be the recourse he would have appealed the judgment
[with petitioners referring to the RTC Order of Partition]. But the findings of facts in the
Decision as well [as] dispositive do not show that any valid grounds for exception to partition
is even present in the instant case.11
Cesar alleged that the estate is not indivisible just because of the different locations and
conditions of the parcels of land constituting the same. Section 5, Rule 69 of the Rules of
Court can only be availed of if the partition or division of the real properties involved would
be prejudicial to the interest of any of the parties. He asserted that despite the segregation of
his share, the remaining parcels of land would still be serviceable for the planting of rice, corn,
and sugarcane, thus evidencing that no prejudice would be caused to the interests of his co-
heirs.
Countering Cesar’s arguments, private respondents contended that physical division is
impossible because Alicia’s estate is equivalent to 2/21 shares in Hacienda Sta. Rita, which is
composed of 13 parcels under different titles and tax declarations, situated in different
barangays and municipalities, and covers an area of 496 hectares.
After a serious consideration of the matters raised by the parties, the RTC issued an Order
dated 22 June 2001 approving in toto the recommendations embodied in the Commissioners’
Report, particularly, the recommendation that the property be assigned to one of the heirs at
₱700,000.00 per hectare or a total amount of ₱4,724,726.00,12 after finding the same to be in
accordance with the Rules of Court and the New Civil Code. Pertinent portions of the Order
are reproduced below:
WHEREFORE, in view of all the foregoing, the Commissioners Report dated November 17,
2000 is hereby approved in toto, more specifically its recommendation to assign the property
to any one of the heirs interested at the price of ₱700,000.00 per hectare or in the total amount
of ₱4,724,726.00 per share.
Regarding the properties of deceased Alicia Marasigan located at San Juan, Batangas, the
herein Commissioners, Mrs. Myrna V. Badiong and Engr. Sandie B. Dacara are hereby
directed to proceed with utmost dispatch to San Juan, Batangas and inspect said properties
(Exhibits 1 to 10 inclusive) and thereafter to submit a Supplemental Report as to its partition
or other disposition with notice to all parties and their counsels all at the expense of the estate,
within a period of thirty (30) days from receipt hereof.
Dissatisfied, Cesar filed a Motion for Reconsideration,13 which was denied by the RTC for
lack of merit.14
In the meantime, Cesar died on 25 October 2001. He was substituted by his heirs and herein
petitioners, namely, Luz Regina, Cesar, Jr., Benito, Santiago, Renato, Jose, Geraldo, Orlando,
Peter, Paul, Mauricio, Rommel, Michael, Gabriel, and Maria Luz, all surnamed Marasigan.
Upon the denial by the RTC of Cesar’s Motion for Reconsideration, petitioners elevated their
case to the Court of Appeals via a Petition for Certiorari and Prohibition under Rule 65 of the
Rules of Court, docketed as Special Civil Action No. 67529. 15 They claimed that the RTC
judge acted with grave abuse of discretion amounting to lack or excess of jurisdiction in
approving the Commissioners’ Report although the facts would clearly indicate the following:
(a) The procedure taken by the Commissioners violated the procedure for partition provided in
Section 4, Rule 69 of the 1997 Rules of Procedure because there was no notice sent to them
for the viewing and examination of the properties of the estate; neither were they heard as to
their preference in the portion of the estate, thus depriving them of due process;
(b) The ground used by the Commissioners resulting in their recommendation to assign the
property is not one of those grounds provided under the Rules
(c) Article 492 of the New Civil Code is inapplicable
(d) Assignment of the real properties to one of the parties will not end the co-ownership.
Moreover, petitioners accused the RTC of committing grave abuse of discretion in solely
relying on the testimony of Apolonio to the effect that physical division is impractical
because, while other portions of the land are suitable for agriculture, the others are not, citing
the different contours of the land and unavailability of water supply in some parts.
The Court of Appeals dismissed petitioners’ Petition for Certiorari and Prohibition in a
Decision16 promulgated on 31 July 2002, and ruled that the RTC acted within its authority in
issuing the Order of 22 June 2001. The Court of Appeals found that petitioners failed to
discharge the burden of proving that the proceedings before the Board of Commissioners were
unfair and prejudicial. It likewise found that the petitioners were not denied due process
considering that they were afforded the opportunity to be heard during the hearing for
approval of the Commissioners’ Report on 18 January 2001. According to the appellate court,
whether or not the physical division of the estate will cause prejudice to the interests of the
parties is an issue addressed to the discretion of the Commissioners. It further held that it
would be absurd to believe that the prejudice referred to in Section 5, Rule 69 of the Rules of
Court does not embrace physical impossibility and impracticality. It concurred in the finding
of the RTC that:
It is not difficult to believe that a physical partition/division of the 2/21 pro-indiviso shares of
the decedent Alicia Marasigan contained in and spread throughout thirteen (13) parcels of the
Hacienda Sta. Rita with a total area of 946 (sic) hectares would be quite impossible if totally
impractical. The said parcels are of different measurements in terms of areas and shapes
located in different barrages of the Municipalities of Pili and Minalabac, Camarines Sur. 17
The Court of Appeals also noted that whether or not the RTC correctly applied Section 5, Rule
69 of the Rules of Court and Article 492 of the New Civil Code, would involve an error of
judgment, which cannot be reviewed on certiorari. Finally, the Court of Appeals found
unmeritorious petitioners’ argument that the assignment of the estate to one of the parties does
not end the co-ownership, considering that it questions the 4 February 2000 18 Decision of the
RTC which had already become final and executory.
Petitioners filed a Motion for Reconsideration19 of the foregoing Decision but the same was
denied by the Court of Appeals in a Resolution dated 13 November 2002. Still aggrieved,
petitioners filed on 31 December 2002 this Petition for Review under Rule 45 of the Revised
Rules of Court, docketed as G.R. No. 156078.
Pending resolution of the instant Petition by this Court, the RTC granted private respondents’
Urgent Motion for Execution on 26 December 2002. The RTC ordered the sale of petitioners’
1/7 pro-indiviso share in Alicia’s estate upon the urgent motion of private respondents dated
27 September 2002 for the partial execution of the judgment of the Court approving the
Commissioners’ report pending certiorari.20
Petitioners’ share in Alicia’s estate was sold in a public auction on 26 February 2003. 21 Based
on the Commissioners’ Report on the Auction Sale, there were two bidders, Apolonio
Marasigan and Amado Lazaro. Apolonio, with a bid of ₱701,000.00 per hectare, won over
Amado Lazaro, whose bid was ₱700,000.00 per hectare. Petitioners’ 1/7 share as Cesar’s heirs
in Alicia’s estate was sold in the public auction for ₱3,777,689.00.
This amount is lower than the ₱4,724,726.30 price of the 1/7 share in Alicia’s estate as earlier
determined by the Commissioners due allegedly to the acquisition by the Department of
Agrarian Reform (DAR) of a portion of Hacienda Sta. Rita located in Minilabac, Camarines
Sur which was placed under Republic Act No. 6657, or the Comprehensive Agrarian Reform
Law, with 100.00 hectares thereof compulsorily acquired.
On 24 March 2003, petitioners filed with the RTC a Motion to Declare Failure of Bidding and
to Annul Public Auction Sale.
On 5 May 2003, however, the RTC released an Omnibus Order22 ruling, among other things,
that the objection of petitioners as to the difference of the value of their 1/7 share as
determined by the Commissioners vis-à-vis the winning bid was no longer an issue since
Apolonio Marasigan indicated his willingness to pay for the deficiency.
Following the public auction and sale of their 1/7 share in the property, 23 petitioners filed a
Notice of Appeal24 with the RTC on 26 May 2003 indicating that they were appealing the 5
May 2003 Omnibus Order of the RTC25 to the Court of Appeals. Thereafter, or on 9 June
2003, petitioners filed a Record on Appeal26 pursuant to Section 3, Rule 41 of the Rules of
Court, praying that it be approved and transmitted to the Court of Appeals. 27
On 2 July 2003, the RTC issued an Order denying due course to petitioners’ Notice of Appeal
on the ground that the proper remedy is not appeal, but certiorari. Petitioners then filed on 27
August 2003 another Petition before the Court of Appeals for Certiorari and
Mandamus,28 docketed as CA-G.R. SP No. 78912, praying that the RTC be directed to
approve their Notice of Appeal and Record on Appeal, and to forward the same to the
appellate court.
In a Resolution29 dated 10 October 2003, the Court of Appeals dismissed CA-G.R. SP No.
78912 outright on the ground that the verification and certificate of non-forum shopping of the
petition was signed by only Cesar Marasigan, Jr., without any accompanying document to
prove his authority to sign on behalf of the other petitioners. Petitioners filed a Motion for
Reconsideration but it was denied by the Court of Appeals in a Resolution 30 dated 12 July
2004.31
Cesar G. Marasigan, Jr., in a Petition for Certiorari filed with this Court on 4 September 2004
and docketed as G.R. No. 164970, prayed for the reversal and setting aside of the Court of
Appeals Resolution dated 10 October 2003 dismissing CA-G.R. SP No. 78912, and Resolution
dated 12 July 2004 denying the Motion for Reconsideration thereof. This Court, however,
issued a Resolution on 13 October 2004 denying the petition for failure of the petitioner to
show that the Court of Appeals committed a reversible error. The same has become final and
executory.
Going back to the Petition at bar, petitioners raise before this Court the following assignment of errors:
I. THE COURT A QUO HAS DECIDED A QUESTION OF SUBSTANCE NOT
THEREFORE DETERMINED BY THE SUPREME COURT IN FINDING THAT THERE
IS NO NEED FOR DUE NOTICE TO THE PARTIES TO ATTEND THE VIEWING AND
EXAMINATION OF THE REAL ESTATE SUBJECT OF PARTITION WHEN THE
COMMISSIONERS HAVE DECIDED NOT TO PARTITION THE PROPERTY AND
SUCH NOTICE UNDER SECTION 4 OF RULE 69 IS INDISPENSABLE ONLY WHEN
THEIR DECISION IS TO PARTITION.
II. THE DECISION OF THE COURT OF APPEALS IS NOT IN ACCORDANCE WITH
LAW PARTICULARLY WITH ARTICLES 494 AND 495 OF THE NEW CIVIL CODE
AND SECTIONS 5 RULE 69 OF THE RULES.
III. THAT THE FINDINGS OF THE COURT OF APPEALS OF PHYSICAL
IMPOSSIBILITY AND IMPRACTICALITY IF EMBRACED IN ‘PREJUDICE’
REFERRED IN SECTION 5, RULE 69 OF THE RULES SHALL MAKE SAID RULE
VIOLATIVE OF THE CONSTITUTIONAL LIMITATIONS ON THE RULE MAKING
POWER OF THE SUPREME COURT THAT ITS RULES SHALL NOT INCREASE,
DECREASE OR MODIFY SUBSTANTIVE RIGHTS.32
In their Memorandum, however, petitioners submitted for resolution the following issues.
I. RESPONDENTS HAVE NO CAUSE OF ACTION FOR PARTITION BECAUSE THE
SUBJECT MATTER OF THE CASE CONSISTS OF UNDIVIDED SHARES WHICH
CANNOT BE PARTITIONED.
II. THE REGIONAL TRIAL COURT HAS NO JURISDICTION TO PARTITION
UNDIVIDED OR UNIDENTIFIED LAND AND HAS NOT ACQUIRED JURISDICTION
OVER 496 HECTARES OF UNDIVIDED LAND WHICH SHOULD BE THE PROPER
SUBJECT OF PARTITION.
III. THE JUDGMENT OF PARTITION AND ALL SUBSEQUENT PROCEEDINGS ARE
NULL AND VOID AB INITIO, INCLUDING THE PUBLIC AUCTION SALE OF
PETITIONERS’ SHARES WHICH HAD NOT RENDERED THIS PETITION MOOT.
IV. EVEN ASSUMING ARGUENDO THAT LACK OF CAUSE OF ACTION AND LACK
OF JURISDICTION, AS DISCUSSED, CAN BE IGNORED, THE PROCEEDINGS
BELOW ARE TAINTED WITH SERIOUS IRREGULARITIES THAT CALL FOR THE
EXERCISE OF THE SUPERVISORY POWERS OF THIS HONORABLE COURT.
V. CERTIORARI AS A SPECIAL CIVIL ACTION UNDER RULE 65 AND APPEAL BY
CERTIORARI UNDER RULE 45, BOTH OF THE 1997 RULES OF CIVIL PROCEDURE,
WERE EMPLOYED AS PROPER REMEDIES IN THIS CASE.33
This Court significantly notes that the first three issues,34 alleging lack of jurisdiction and
cause of action, are raised by petitioners for the first time in their Memorandum. No amount of
interpretation or argumentation can place them within the scope of the assignment of errors
they raised in their Petition.
The parties were duly informed by the Court in its Resolution dated 17 September 2003 that
no new issues may be raised by a party in his/its Memorandum and the issues raised in his/its
pleadings but not included in the Memorandum shall be deemed waived or abandoned. The
raising of additional issues in a memorandum before the Supreme Court is irregular, because
said memorandum is supposed to be in support merely of the position taken by the party
concerned in his petition, and the raising of new issues amounts to the filing of a petition
beyond the reglementary period.35 The purpose of this rule is to provide all parties to a case a
fair opportunity to be heard. No new points of law, theories, issues or arguments may be raised
by a party in the Memorandum for the reason that to permit these would be offensive to the
basic rules of fair play, justice and due process.36
Petitioners failed to heed the Court’s prohibition on the raising of new issues in the
Memorandum.
Moreover, Section 1 of Rule 9 of the Rules of Court provides that:
SECTION 1. Defenses and objections not pleaded. – Defenses and objections not pleaded
either in a motion to dismiss or in the answer are deemed waived. However, when it appears
from the pleadings or the evidence on record that the court has not jurisdiction over the subject
matter, that there is another action pending between the same parties for the same cause, or
that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss
the claim.
First, it bears to point out that Cesar, petitioners’ predecessor, did not file any motion to
dismiss, and his answer before the RTC did not bear the defenses/objections of lack of
jurisdiction or cause of action on these grounds; consequently, these must be considered
waived. The exception that the court may still dismiss a case for lack of jurisdiction over the
subject matter, although the same is not pleaded, but is apparent in the pleadings or evidence
on record, does not find application to the present Petition. Second, petitioners’
arguments37 on the lack of jurisdiction of the RTC over the case more appropriately pertain to
venue, rather than jurisdiction over the subject matter, and are, moreover, not apparent from
the pleadings and evidence on record. Third, the property subject of partition is only the 47.2
hectare pro-indiviso area representing the estate of Alicia. It does not include the entire 496
hectares of land comprising Hacienda Sta. Rita.
Even petitioners’ argument that non-payment of appropriate docket fees by private
respondents deprived the RTC of jurisdiction to partition the entire Hacienda Sta.
Rita38 deserves scant consideration. In National Steel Corporation v. Court of Appeals,39 the
Court ruled:
x x x while the lack of jurisdiction of a court may be raised at any stage of an action,
nevertheless, the party raising such question may be estopped if he has actively taken part in
the very proceedings which he questions and he only objects to the court’s jurisdiction because
the judgment or the order subsequently rendered is adverse to him.
Irrefragably, petitioners raised the issues of jurisdiction for lack of payment of appropriate
docket fees and lack of cause of action belatedly in their Memorandum before this Court.
Cesar and petitioners were noticeably mum about these in the proceedings before. In fact,
Cesar actively participated in the proceedings conducted before the RTC by seeking
affirmative reliefs therefrom, such as the inclusion of more properties in the partition. Hence,
petitioners are already estopped from assailing the jurisdiction of the RTC on this ground.
It is conceded that this Court adheres to the policy that "where the court itself clearly has no
jurisdiction over the subject matter or the nature of the action, the invocation of this defense
may de done at any time."40 While it is the general rule that neither waiver nor estoppel shall
apply to confer jurisdiction upon a court, the Court may rule otherwise under meritorious and
exceptional circumstances. One such exception is Tijam v. Sibonghanoy, 41 which finds
application in this case. This Court held in Tijam that "after voluntarily submitting a cause and
encountering an adverse decision on the merits, it is too late for the loser to question the
jurisdiction or power of the court."
This Court further notes that while petitioners filed their last pleading in this case, their
Memorandum, on 26 December 2003, they failed to mention therein that the Court of Appeals
had already dismissed CA-G.R. SP No. 78912.42 To recall, CA-G.R. No. 78912 is a Petition
for Certiorari and Mandamus involving the RTC Order dated 2 July 2003, which denied
petitioners’ Notice of Appeal. Petitioners intended to appeal the RTC Omnibus Order dated 5
May 2003 sustaining the public auction and sale of petitioners’ share in Alicia’s estate.
Petitioners’ failure to provide this Court with information on the developments in CA-G.R. SP
No. 78912 is not only in violation of the rules on non-forum shopping, but is also grossly
misleading, because they are raising in their Memorandum in the present case the same issues
concerning the public auction and sale of their share in Alicia’s estate. The purpose of the rule
against forum shopping is to promote and facilitate the orderly administration of justice.
Forum shopping "occurs when a party attempts to have his action tried in a particular court or
jurisdiction where he feels he will receive the most favorable judgment or verdict." In our
jurisdiction, it has taken the form of filing multiple petitions or complaints involving the same
issues before two or more tribunals or agencies in the hope that one or the other court would
make a favorable disposition. There is also forum shopping when, because of an adverse
decision in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in
another. The rationale against forum shopping is that a party should not be allowed to pursue
simultaneous remedies in two different fora. Filing multiple petitions or complaints constitutes
abuse of court processes, which tends to degrade the administration of justice, wreaks havoc
upon orderly judicial procedure, and adds to the congestion of the heavily burdened dockets of
the courts. Thus, the rule proscribing forum shopping seeks to promote candor and
transparency among lawyers and their clients in the pursuit of their cases before the courts to
promote the orderly administration of justice, prevent undue inconvenience upon the other
party, and save the precious time of the courts. It also aims to prevent the embarrassing
situation of two or more courts or agencies rendering conflicting resolutions or decisions upon
the same issue.43
Petitioners have indeed managed to muddle the issues in the instant case by raising issues for
the first time in their Memorandum, as well as including issues that were already pending
before another tribunal and have eventually been decided with finality, for which reason
petitioners are herein admonished by this Court.
The Court, nonetheless, manages to strip the issues in this Petition down to the singular issue
of whether or not the Court of Appeals erred in affirming in toto the RTC Order adopting the
Commissioners’ recommendation on the manner of partition of the estate of Alicia Marasigan.
After an exhaustive study of the merits of the case and the pleadings submitted by the parties,
this Court is convinced that the Court of Appeals did not err in affirming the Order of the RTC
which approved the Commissioners’ recommendations as to the manner of implementing the
Order of Partition of Alicia’s estate. There is no reason to reverse the Court of Appeal’s
dismissal of petitioners’ Petition for Certiorari and Prohibition and ruling that the RTC acted
well-within its jurisdiction in issuing the assailed Order. Nowhere is it shown that the RTC
committed such patent, gross and prejudicial errors of law or fact, or a capricious disregard of
settled law and jurisprudence, as to amount to a grave abuse of discretion or lack of
jurisdiction on its part, in adopting and confirming the recommendations submitted by the
Commissioners, and which would have warranted the issuance of a writ of certiorari.
This petition originated from an original action for partition. It is governed by Rule 69 of the
Rules of Court, and can be availed of under the following circumstances:
Section 1. Complaint in action for partition of real estate. A person having the right to compel
the partition of real estate may do so as provided in this Rule, setting forth in his complaint the
nature and extent of his title and an adequate description of the real estate of which partition is
demanded and joining as defendants all other persons interested in the property.
In this jurisdiction, an action for partition is comprised of two phases: first, the trial court, after
determining that a co-ownership in fact exists and that partition is proper, issues an order for
partition; and, second, the trial court promulgates a decision confirming the sketch and
subdivision of the properties submitted by the parties (if the parties reach an agreement) or by
the appointed commissioners (if the parties fail to agree), as the case may be. 44
The delineations of these two phases have already been thoroughly discussed by this Court in
several cases where it explained:
The first phase of a partition and/or accounting suit is taken up with the determination of
whether or not a co-ownership in fact exists, (i.e., not otherwise legally proscribed) and may
be made by voluntary agreement of all the parties interested in the property. This phase may
end with a declaration that plaintiff is not entitled to have a partition either because a co-
ownership does not exist, or partition is legally prohibited. It may end, upon the other hand,
with an adjudgment that a co-ownership does in truth exist, partition is proper in the premises
and an accounting of rents and profits received by the defendant from the real estate in
question is in order. In the latter case, the parties may, if they are able to agree, make partition
among themselves by proper instruments of conveyance, and the court shall confirm the
partition so agreed upon. In either case – i.e., either the action is dismissed or partition and/or
accounting is decreed – the order is a final one, and may be appealed by any party aggrieved
thereby.
The second phase commences when it appears that "the parties are unable to agree upon the
partition" directed by the court. In that event, partition shall be done for the parties by the
court with the assistance of not more than three (3) commissioners. This second stage may
well also deal with the rendition of the accounting itself and its approval by the court after the
parties have been accorded opportunity to be heard thereon, and an award for the recovery by
the party or parties thereto entitled of their just share in the rents and profits of the real estate
in question. Such an order is, to be sure, final and appealable.45
Trouble arose in the instant petition in the second phase.
Petitioners postulate that the Court of Appeals erred in holding that notice to the heirs
regarding the examination and viewing of the estate is no longer necessary given the
circumstances. They aver that, in effect, the Court of Appeals was saying that such notice is
only necessary when the Commissioners actually distribute the properties, but is not
mandatory when the Commissioners recommend the assignment of the properties to any of the
heirs. Petitioners contend that this is prejudicial to their right to due process since they are
deprived of the opportunity to be heard on the valuation of their share in the estate.
Petitioners’ opposition is anchored on Section 4 of Rule 69 of the Rules of Court, which reads:
Section 4. Oath and duties of commissioners. Before making such partition, the
commissioners shall take and subscribe an oath that they will faithfully perform their duties as
commissioners, which oath shall be filed in court with the other proceedings in the case. In
making the partition, the commissioners shall view and examine the real estate, after due
notice to the parties to attend at such view and examination, and shall hear the parties as to
their preference in the portion of the property to be set apart to them and the comparative
value thereof, and shall set apart the same to the parties in lots or parcels as will be most
advantageous and equitable, having due regard to the improvements, situation and quality of
the different parts thereof.
Petitioners insist that the above provision is explicit and does not allow any qualification,
contending that it does not require that the lack of notice must first be proven to have caused
prejudice to the interest of a party before the latter may object to the Commissioners’ viewing
and examination of the real properties on the basis thereof. They maintain that they were
prejudiced by the mere lack of notice.
We, on the other hand, find that the scales of justice have remained equal throughout the
proceedings before the RTC and the Commissioners. This Court, in the performance of its
constitutionally mandated duty to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government, is duty-bound to ensure that due process is afforded to all
the parties to a case.
As the Court of Appeals declared, due process is not a mantra, the mere invocation of which
shall warrant a reversal of a decision. Well-settled is the rule that the essence of due process is
the opportunity to be heard. In Legarda v. Court of Appeals, 46 the Court held that as long as
parties to a case were given the opportunity to defend their interest in due course, they cannot
be said to have been denied due process of the law. Neither do the records show any indicia
that the preference of petitioners for the physical subdivision of the property was not taken
into consideration by the Commissioners.
Petitioners’ persistent assertion that their rights were prejudiced by the lack of notice is not
enough. Black’s Law Dictionary defines the word prejudice as damage or detriment to one’s
legal rights or claims. Prejudice means injury or damage.47 No competent proof was adduced
by petitioners to prove their allegation. Mere allegations cannot be the basis of a finding of
prejudice. He who alleges a fact has the burden of proving it and a mere allegation is not
evidence.48
It should not be forgotten that the purpose of the rules of procedure is to secure for the parties
a just, speedy and inexpensive determination of every action or proceeding. 49 The ultimate
purpose of the rules of procedure is to attain, not defeat, substantial justice.50
Records reveal that the parties were given sufficient opportunity to raise their concerns. From
the time the action for partition was filed by private respondents, all the parties, including the
late Cesar, petitioners’ predecessor, were given a fair opportunity to be heard. Since the parties
were unable to agree on how the properties shall be divided, Commissioners were appointed
by the Court pursuant to Section 3 of Rule 69 of the Rules of Court.
Section 3. Commissioners to make partition when parties fail to agree. - If the parties are
unable to agree upon the partition, the court shall appoint not more than three (3) competent
and disinterested persons as commissioners to make the partition, commanding them to set off
to the plaintiff and to each party in interest such part and proportion of the property as the
court shall direct.
While the lack of notice to Cesar of the viewing and examination by the Commissioners of the
real properties comprising Alicia’s estate is a procedural infirmity, it did not violate any of his
substantive rights nor did it deprive him of due process. It is a matter of record, and petitioners
cannot deny, that Cesar was able to file his Comment/Opposition to the Commissioners’
Report. And after the RTC adopted and confirmed the Commissioners’ recommendations in
its Order dated 22 June 2001, Cesar was able to file a Motion for Reconsideration of the said
Order. He had sufficient opportunity to present before the RTC whatever objections or
oppositions he may have had to the Commissioners’ Report, including the valuation of his
share in Alicia’s estate.
Petitioners also allege that the ruling of the Court of Appeals -- that physical impossibility and
impracticality are embraced by the word "prejudice," referred to in Section 5 of Rule 69 of the
Rules of Court -- violates the constitutional limitation on the rule-making power of the
Supreme Court, according to which, the Rules of Court shall not increase, decrease or modify
substantive rights.
According to petitioners, Section 5 of Rule 69 of the Rules of Court, which provides:
Section 5. Assignment or sale of real estate by commissioners. - When it is made to appear to
the commissioners that the real estate, or a portion thereof, cannot be divided without
prejudice to the interests of the parties, the court may order it assigned to one of the parties
willing to take the same, provided he pays to the other parties such amounts as the
commissioners deem equitable, unless one of the interested parties asks that the property be
sold instead of being so assigned, in which case the court shall order the commissioners to sell
the real estate at public sale under such conditions and within such time as the court may
determine.
should be read in conjunction with Articles 494 and 495 of the New Civil which provide for
the following substantive rights:
Article 494. No co-owner shall be obliged to remain in the co-ownership. Each co-owner may
demand at any time the partition of the thing owned in common, insofar as his share is
concerned.
Nevertheless, an agreement to keep the thing undivided for a certain period of time, not
exceeding ten years, shall be valid. This term may be extended by a new agreement.
A donor or testator may prohibit partition for a period which shall not exceed twenty years.
Neither shall there be any partition when it is prohibited by law.
No prescription shall run in favor of a co-owner or co-heir against his co-owners or co-heirs so
long as he expressly or impliedly recognizes the co-ownership.
Article 495. Notwithstanding the provisions of the preceding article, the co-owners cannot
demand a physical division of the thing owned in common, when to do so would render
unserviceable for the use for which it is intended. But the co-ownership may be terminated in
accordance with Article 498.
Article 498 of the New Civil Code, referred to by Article 495 of the same Code, states:
Article 498. Whenever the thing is essentially indivisible and the co-owners cannot agree that
it be allotted to one of them who shall indemnify the others, it shall be sold and its proceeds
distributed.
Evidently, the afore-quoted Civil Code provisions and the Rules of Court must be interpreted
so as to give effect to the very purpose thereof, which is to put to an end to co-ownership in a
manner most beneficial and fair to all the co-owners.
As to whether a particular property may be divided without prejudice to the interests of the
parties is a question of fact. To answer it, the court must take into consideration the type,
condition, location, and use of the subject property. In appropriate cases such as the one at bar,
the court may delegate the determination of the same to the Commissioners.
The Commissioners found, after a viewing and examination of Alicia’s estate, that the same
cannot be divided without causing prejudice to the interests of the parties. This finding is
further supported by the testimony of Apolonio Marasigan that the estate cannot be divided
into smaller portions, since only certain portions of the land are suitable to agriculture, while
others are not, due to the contours of the land and unavailability of water supply.
The impracticality of physically dividing Alicia’s estate becomes more apparent, considering
that Hacienda Sta. Rita is composed of parcels and snippets of land located in two different
municipalities, Pili and Minalabac, Camarines Sur. The actual area representing Alicia’s 2/21
pro-indiviso shares in Hacienda Sta. Rita is 422,422.65 square meters, more or less. Each of
Alicia’s heirs is entitled to 1/7 share in her estate equivalent to 67,496.09 square meters or
roughly seven hectares.51 Cesar and his heirs are entitled only to his 1/7 share in the yet
unidentified, unsegregated 2/21 pro-indiviso shares of Alicia in each of the 13 parcels of land
that comprises Hacienda Sta. Rita. Dividing the parcels of land even further, each portion
allotted to Alicia’s heirs, with a significantly reduced land area and widely scattered in two
municipalities, would irrefragably diminish the value and use of each portion, as compared to
keeping the entire estate intact.1avvphi1
The correctness of the finding of the RTC and the Commissioners that dividing Alicia’s estate
would be prejudicial to the parties cannot be passed upon by the Court of Appeals in a petition
for certiorari. Factual questions are not within the province of a petition for certiorari. There is
a question of fact when the doubt arises as to the truth or falsity of the alleged facts. As to
whether the court a quo decided the question wrongly is immaterial in a petition for certiorari.
It is a legal presumption that findings of fact of a trial court carry great weight and are entitled
to respect on appeal, absent any strong and cogent reason to the contrary, since it is in a better
position to decide the question of credibility of witnesses.52
The writ of certiorari issues for the correction of errors of jurisdiction only or grave abuse of
discretion amounting to lack or excess of jurisdiction. The writ of certiorari cannot be legally
used for any other purpose.53 At most, the petition pertains to an error of judgment, and not of
jurisdiction, for clearly under Section 5 of Rule 69, the question of whether a party’s interest
shall be prejudiced by the division of the real property is left to the determination and
discretion of the Commissioners.
Hence, it is totally unnecessary for this Court to address the issue raised by petitioners
concerning the alleged unconstitutionality of Section 5, Rule 69 of the Rules of Court for
having been issued beyond the constitutional limitation on the rule-making power of this
Court. Basic is the principle that a constitutional issue may only be passed upon if essential to
the decision of a case or controversy.54 A purported constitutional issue raised by petitioners
may only be resolved if essential to the decision of a case and controversy. Even if all the
requisites for judicial review are present, this Court will not entertain a constitutional question
unless it is the very lis mota55 of the case or if the case can be disposed of on some other
grounds, such as the application of a statute or general law. The present problem of partition
by co-heirs/co-owners can be resolved without elevating their case to one of constitutionality.
In the absence of evidence to the contrary, this Court can only presume that the proceedings in
Special Civil Action No. P-77-97 before the RTC, including the recommendation made by the
Commissioners, were fairly and regularly conducted, meaning that both the RTC and the
appointed Commissioners had carefully reviewed, studied, and weighed the claims of all the
parties.lavvphil

Petitioners’ argument that the assignment of the property will not terminate the co-ownership
is specious, considering that partition, in general, is the separation, division, and
ASSIGNMENT of a thing held in common by those to whom it may belong. 56

Inasmuch as the parties continued to manifest their desire to terminate their co-ownership, but
the co-heirs/co-owners could not agree on which properties would be allotted to each of them,
this Court finds that the Court of Appeals was correct in ruling that the RTC did not act with
grave abuse of discretion amounting to lack or excess of jurisdiction when it approved the
Commissioners’ recommendation that the co-heirs/co-owners assign their shares to one of
them in exchange for proper compensation.

This Court has consistently held that one of the purposes for which courts are organized is to
put an end to controversy in the determination of the respective rights of the contending
parties. With the full knowledge that courts are not infallible, the litigants submit their
respective claims for judgment, and they have a right at some time or another to have final
judgment on which they can rely over a final disposition of the issue or issues submitted, and
to know that there is an end to the litigation;57 otherwise, there would be no end to legal
processes.58

Finally, petitioners raise before this Court the issue that the public auction sale of their shares
is null and void; at the same time they allege deficiency in the bid price for their 1/7 share in
Alicia’s estate vis-à-vis the valuation of the same by the Commissioners. 59 This Court is
already barred from ruling on the validity of the public auction sale. This Court’s ruling dated
13 October 2004 in G.R. No. 164970 denying their petition for certiorari lays to rest
petitioners’ questioning of the Court of Appeals’ Resolution dismissing their appeal therein of
the issue of the validity of the public sale of their share in Alicia’s estate. Such decision or
order can no longer be disturbed or reopened no matter how erroneous it may have been. 60

Indeed, while it is understandable for petitioners to protect their rights to their portions of the
estate, the correlative rights of the other co-owners/co-heirs must also be taken into
consideration to balance the scales of justice. And, by finding the course of action, within the
boundaries of law and jurisprudence, that is most beneficial and equitable for all of the parties,
the courts’ duty has been satisfactorily fulfilled.

Thus, contrary to petitioners’ averments, this Court finds that the Court of Appeals did not err
in ruling that the RTC did not commit grave abuse of discretion amounting to lack or excess of
jurisdiction in adopting and confirming the recommendations of the Commissioners.

WHEREFORE, premises considered, the Petition for Review on Certiorari is hereby DENIED
for lack of merit, and the assailed Decision dated 31 July 2002 of the Court of Appeals in
docket no. CA-G.R. SP No. 67529 is hereby AFFIRMED. Costs against petitioners.

SO ORDERED.