REPUBLIC OF THE PHILIPPINES

FOURTH JUDICIAL REGION

MUNICIPAL TRIAL COURT
CITY OF CABUYAO, LAGUNA

HELENA MONTIFAR, CIVIL CASE NO. 2781

Plaintiff,

-versus-

SPS. ROLLY and RUFINA BITO

and all persons and occupants
claiming rights under them, For: UNLAWFUL DETAINER
Defendants. WITH DAMAGES
x----------------------------------------------x

POSITION PAPER
(For the Defendant)

COMES NOW, the Defendant, through counsel, unto this Honorable Court,
respectfully submits this Position Paper and further aver the following:

TIMELINESS OF FILING THIS POSITION PAPER

Defendant’s Counsel, Public Attorney’s Office Biñan received a copy of the

Preliminary Conference Order on October 2, 2017 ordering both parties to submit
position paper and affidavits relative to this case within 10 days Hence, this paper
is filed within the reglementary period;

PARTIES
1. Defendants, Sps. Rolly and Rufina Bito are of legal age, Filipino and
presently residing at and lawful possessors of a parcel of land with a total
area of 3,238 square meters located at South Point, Brgy. Banay-Banay,
Cabuyao City, Laguna since 1997. They are being represented by the Public
Attorney’s Office, City of Biñan, Laguna District with address at Hall of
Justice, Golden City Subdivision, Brgy. Canlalay, Binan City Laguna, where
they may be served with summons and other processes of the Honorable
Court;

2. Plaintiff Helena Montifar on the other hand is of legal age, single, Filipino
and presently residing at Barangay Sta. Clara, Sto. Tomas Batangas. She is
represented by Atty. Fred B. Bravo of Bravo Fandialan Guevarra &
Associates Law Office with address at Monte Carlo Bldg., No. 23 Hermanos
Belen St. San Pablo City, Laguna, she they maybe served with summons and
other judicial processes of the Honorable Court;

STATEMENT OF RELEVANT ANTECEDENT FACTS

AND PROCEEDINGS

1. As admitted by Plaintiff during the Preliminary Conference, Defendant

Spouses Rolly and Rufina Bito are lawful possessors of a lot with a total
area of Three Thousand Two Hundred Thirty-eight (3,238) square meters
located at South Point, Brgy. Banay-Banay Cabuyao, Laguna.

2. They have been in open, continuous, exclusive, notorious and adverse

possession and occupation of the land since 1997 (even before Plaintiff
acquired the neighboring lot), after having come to the said area and found
that it was vacant, and after an inquiry resulted in their discovery that said
property has no owner. This fact is demonstrated by a Certification from
the Sangguniang Barangay of Banay-banay issued by Barangay Chairman
Efren Cabuang on July 1, 2015, a copy attached herein as Annex “1;”
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 Affidavits of Adjoining Properties executed by their neighbors Victorio P.
Diaz and Soledad L. Alforja on May 12, 2015, acknowledged before Atty
Guillermo L. Entredicho, a notary public for the City of Cabuyao, Laguna,
copies of which are herein attached as Annex “3” and “3-A;” and a
document entitled Pagpapatunay issued by the Office of the Sangguniang
Barangay of Pulo signed by Punong Barangay Odilon I. Caparas dated
October 13, 2005, a copy of which was submitted in Defendant’s Answer as
Annex “D” and herein attached as Annex “8” along with a Sworn
Statement by the same as to the surrounding circumstances when he issued
the said Pagpapatunay, a copy of which is attached herein as Annexes “8-A”
to “8-B.”

3. Defendants have been applying for the registration of the said property since
2015, thereby executing an Affidavit of Ownership for the said purpose,
dated April 24, 2015 and acknowledged by Atty. Michael L. Asuten, a
notary public for the Province of Laguna. A copy of said Affidavit is herein
attached as Annex 2.”

4. For the same purpose, Defendant Rufina Bito also submitted a Request
Letter to the DENR-CENRO-IV-A of Los Baños, Laguna for the
Identification and Certification of the subject lot, dated May 29,2015,
which the said department issued, together with a Sketch Plan, through
Certifying Officer Marilyn Aguilon on June 8, 2015, copies of said
documents are herein attached herein as Annexes “4,” “5” and “5-A”
respectively. It can be gleaned from the said Certification that the subject
parcel of land was declared to be WITHIN THE ALIENABLE AND
DISPOSABLE LANDS on September 28, 1981.

5. As admitted by Plaintiff, Defendants did not enter into previous agreement

with the Plaintiff, or any of her representatives with respect to the lot subject
of this case, and that, in fact, they only came to know her in 2014, when they
attended the Barangay Conciliation respecting the said land.
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 6. The subject property being occupied by the Defendants is ENTIRELY
DIFFERENT FROM AND IS NOT PART OF the property allegedly
purchased by the Plaintiff. To prove this, Defendant made a request before
the Office of the City Engineer of the City of Cabuyao to inspect the subject
land. In turn, the said office took photographs, and along with a Sketch
Plan, issued an Inspection Report with the recommendation/conclusion
that “RUFINA V. BITO’S RESIDENCE IS NOT PART OF BLK 5, LOT 1
(PROPERTY OF HELENA M. MONTIFAR).” Copies of the said
documents are likewise attached herein as Annexes “6” to “6-B.” These are
also supported by a Sworn Statement by the Head of the Office of the
Engineer of the City of Cabuyao, Evelyn M. Hatulan, a copy of which is
attached herein as Annex “7.”

ISSUES

I. WHETHER OR NOT THE PLAINTIFF HAS THE RIGHT TO LEGALLY

EJECT THE DEFENDANTS AND ALL PERSONS CLAIMING RIGHTS
UNDER THEM FROM THE SUBJECT PROPERTY;

II. WHETHER OR NOT THE PLAINTIFF IS ENTITLED TO HER

MONETARY CLAIM FOR DAMAGES;

III. WHETHER OR NOT PLAINTIFF IS ENTITLED TO DAMAGES.

IV. WHETHER OR NOT DEFENDANTS ARE ENTITLED TO ACTUAL,

MORAL AND EXEMPLARY COMPENSATION.

ARGUMENTS/ DISCUSSIONS

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I. THE PLAINTIFF HAS NO RIGHT TO EJECT DEFENDANTS AND
ALL PERSONS CLAIMING RIGHTS UNDER THEM FROM THE
SUBJECT PROPERTY BECAUSE SHE IS NOT THE LAWFUL
OWNER OF SUCH PROPERTY;

The subject property being occupied by the Defendant is an entirely different

property and distinct from that allegedly purchased and registered by
the Plaintiff in her name

1. The technical description in the Transfer Certificate of Title (TCT)

(Annex “A” in the Complaint) of the lot purchased by Plaintiff pertains only
to a specific parcel of land which is adjacent to the subject land being
occupied by the Defendants.

2. The subject land being occupied by the Defendants has no owner and is part
of Alienable and Disposable Project of DENR (Annex “5”).

The subject property being occupied by the Defendants does not and has
never formed part of the property allegedly purchased and registered by the
Plaintiff in her name.

1. Nowhere in the TCT presented by the Plaintiff in her complaint (Annex

“A”) does it state that the subject property being occupied by the Defendants
forms part of the property acquired by the Plaintiff and registered in her
name.
2. The same TCT (page 3 thereof) states that the land registered under the
name of the Plaintiff contains an area of Two Thousand, Three Hundred
Forty-five square meters (2,345 sq.m.). On the other hand, the subject
property being occupied by the Defendants consists of Three Thousand
Two Hundred Thirty Eight square meters(3,238 sq.m.) as per DENR
Certification (Annex “5”).

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 3. The foregoing leads to two irrefutable conclusions:
1) that they are two distinct parcels of land; and
2) that it is physically and legally impossible that a bigger land area
can be encompassed by a Certificate of Title over a land which is
smaller in area.

THE SUBJECT PROPERTY BEING OCCUPIED BY THE

DEFENDANTS CANNOT BE CONSIDERED AN EASEMENT OF
THE PROPERTY ACQUIRED BY THE PLAINTIFF

The Transfer Certificate of Title presented by Plaintiff does not grant, create
or establish her right to an easement

1. The Plaintiff claimed in her complaint and during the Preliminary

Conference that the subject property being occupied by the Defendants
is an easement of the adjoining property she allegedly acquired. Through
counsel, Plaintiff cited the TCT (Annex A) as her basis.

2. The fact that Plaintiff’s TCT indicates that the lot she allegedly
purchased is “bounded on the NW along line 1-2 by easement” does not
establish her right to an easement especially if there is no other source
of such easement, legally or otherwise, other than what is indicated
in her TCT.

3. Indeed easements may be acquired by “title”. But a “Certificate of Title”

is not what is contemplated by law for the word “title” as a mode of
acquisition of easements. By “title” refers to the juridical act which gives
birth to the easement, such as law, donation, contract and will of the
testator (Manresa 624-625). In this case, none of these juridical acts were
alleged or proven by the Plaintiff as source of her alleged right to an
easement and basis of her claim for the same.
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 4. Moreover, mere registration is not a mode of ownership. It does not
create a right where legally, there is none.

The Plaintiff does not have a legal right to demand compulsory easement

1. An Easement of Right of Way is defined as the right granted by law to

the owner of an esate which is surrounded by other estates belonging to
other persons and without adequate outlet to a public highway to
demand that he be allowed a passageway throughout such neigboring
estates after payment of the proper indemnity. (De Leon, 2011 ed. p.517)

2. The Civil Code of the Philippines ( Republic Act No. 386) states that:
Section 3. – Easement of Right of Way
Art. 649. The owner, or any person who by virtue of a real right
may cultivate or use any immovable, which is surrounded by other
immovables pertaining to other persons and without adequate
outlet to a public highway is entitled to demand a right of way
through the neighboring estates, after payment of the proper
indemnity.

3. There are six (6) essential requisites for the establishment of legal
easements.
1) Claimant must be an owner of enclosed immovable or one with a
real right;
2) There must be no adequate outlet to a public highway or road;
3) The right of way must be absolutely necessary;
4) The isolation must be not due to the claimant’s own acy;
5) The easement must be established at the point least prejudicial to
the servient estate;
6) There must be payment of proper indemnity;

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4. The first requisite is absent. It is readily apparent from Sketch Plans
issued by the DENR and that issued by the Office of the Engineer of the
City of Cabuyao (Annexes “5-A” and “6-A” respectively), that the land
allegedly purchased and registered by the Plaintiff in her name is not an
enclosed estate.

5. The second requisite is also absent. The Plaintiff’s Certificate of Title

itself categorically states on its face that it is bounded by Two (2) roads
“ALONG THE LINE 3-4 BY ROAD;” and “ALONG LINE 4-5 BY
ROAD.” Therefore, Plaintiff’s property has adequate access to a
public highway or road;

6. For the reasons stated in the two previous paragraphs, the third
requisite is also absent.

By essence, easements are “demanded by necessity, that is, to

enable owners of isolated estates to make full use of their
properties, which lack access to public roads has denied them.”
(Costabella Corp. v. Court of Appeals, 193 SCRA 333 [1991]).

Because Plaintiff’s property has adequate access to a road, it is not an

enclosed estate , there is no necessity for an easement. Therefore, there
is no right granted to the Plaintiff to demand an easement from the
adjoining properties.

Supporting Arguments

1. Granting without admitting that Plaintiff is entitled to an easement, the

law could not have contemplated an easement bigger in area than
that of the dominant estate itself.
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 Art. 651. The width of the easement of right of way shall be that
which is sufficient for the needs of the dominant estate, and may
accordingly be changed from time to time.

It would be the height of absurdity if a land consisting of Three

Thousand Two Hundred Thirty Eight square meters(3,238 sq. m.), or the
entirety of the subject property being occupied by the Defendant can be
claimed by another property on a mere claim for an easement.

2. Granting without admitting that there was a time that the previous owner
of the Plaintiff’s property had a need for an easement, thereby justifying
the annotation for one in the Certificate of Title to be later on transferred
in the name of the Plaintiff, there is presently no longer a necessity for
it. And it can and should be extinguished.

Art. 655. If the right of way granted to a surrounded estate

ceases to be neccessary because its owner has joined it to
another abutting on a public road, the owner of the servient
estate may demand that the easement be extinguished,
returning what he may have received by way of indemnity. xxx

The same rule shall be applied in case a new road is opened

giving access to the isolated estate.

THE COMPLAINT FAILS TO STATE A CAUSE OF ACTION,

THEREFORE THE COURT DID NOT ACQUIRE JURISDICTION
OVER THIS CASE.

1. Unlawful Detainer consists in the unlawful withholding by a person

from another, for not more than one (1) year, of the possession of any
land or building after the expiration or termination of the right to hold

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 such possession by virtue of a contract, express or implied. (Torres vs.
Ocampo, 80 Phil. 36). The requisites for the suit of unlawful detainer
are the following:

1. Initially, the possession of the property by the

defendant was by contract with or by tolerance of
the plaintiff.
 
2. Eventually, the possession became illegal upon the
plaintiffs notice to the defendant of the termination
of the latters right of possession.
 
3. Thereafter, the defendant remained in possession of
the property and deprived the plaintiff of the latters
enjoyment.
 
4. Within one year from the making of the last demand
on the defendant to vacate the property, the plaintiff
instituted the Complaint for ejectment. (Macaslang vs
Spouses Zamora, G.R. No. 156375, 30 May 2011, 649
SCRA 92)

2. The first requisite is absent. The complaint alleges that the

Defendants’ possession of the subject property was merely by
tolerance of the Plaintiff. The Plaintiff cannot be said to have merely
“tolerated” the Defendants’ possession of the subject property because
the said property is not owned by the Plaintiff.

3. The Defendants had been occupants of the subject property since

1997, even before the Plaintiffs acquired and registered the
neighboring lot under her name.

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 4. From the time Defendants started occupying the subject property up to
the present, the subject property had no owner and was only declared
as Alienable and Disposable Land by the DENR in September 1981.

5. The second requisite is also absent. The Defendants’ possession of

the subject property was never and did not become illegal as Plaintiff
alleged in her complaint.

6. Granting without admitting that the Plaintiff indeed has served the
Defendants with a Demand to Vacate, such demand does not have a
leg to stand on. The Plaintiff does not have a right over the subject
property, legal or otherwise. Again because the subject property is not
and has never been part of the property allegedly acquired by and
registered in the name of the Plaintiff.

II. PLAINTIFF IS NOT ENTITLED TO DAMAGES

Considering that the Plaintiff is not the lawful owner of the subject
property being occupied by the Defendants; that neither can such property
be claimed by the Plaintiff as easement; and that Plaintif has no cause of
action for a case of Unlawful Detainer against the Defendants, it follows
therefore that Plaintiffs are not entitled to payment of damages.

III. DEFENDANTS ARE ENTITLED TO DAMAGES

In fact, it is the Defendants who are entitled to claim damages from

the Plaintiff for constraining them to litigate.

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 PRAYER

WHEREFORE, premises considered, it is most respectfully prayed that this

Position Paper and its attached documents be given due consideration and that
upon resolution of this case, a favorable judgment be rendered in favor of the
Defendants, declaring that the Plaintiff has no cause of action for Unlawful
Detainer not being the lawful owner of the property being occupied by the
defendants, nor of a right to demand an easement from the latter, thereby
dismissing this case for lack of merit.

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

City of Binan to City of Cabuyao Laguna. October 2, 2017.

DEPARTMENT OF JUSTICE
PUBLIC ATTORNEY’S OFFICE
Counsel for the Plaintiff
Binan District
Hall of Justice Bldg. Canlalay, Binan,
Laguna

By:

FLORDELYN M. BAYANI
Public Attorney I
Roll No. 69193/ IBP No. 016700
MCLE Compliance: N/A

VERIFICATION

We, Spouses Rolly and Rufina Bito, of legal age, Filipinos, and presently
residing at Blk Blk 224, Lot 50, Mabuhay City Subd., Brgy. Mamatid, Cabuyao,
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Laguna, after having been duly sworn to in accordance with law, hereby depose
and state:

1. That we are the Defendants in the above-entitled case;

2. That we, through counsel, prepared the foregoing Position Paper on this
Unlawful Detainer;

3. That we have read and understood the same and all the allegations therein
are true, correct and of our own personal knowledge and/or based on
authentic documents;

IN WITNESS WHEREOF, we have hereunto affixed our signatures this 4 th

day of October in Binan City, Laguna .

ROLLY O. BITO, Sr. RUFINA V. BITO

Affiant Affiant

SUBSCRIBED AND SWORN TO before me this 4th day of October, 2017

in Binan City, Laguna, affiants Rolly, Jr. and Rufina Bito presented the following
identification card bearing their photo and signature:

Witness my hand on the date and place above written.

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