àREPUBLIC OF THE PHILIPPINES

SIXTH JUDICIAL REGION

TH
6 MUNICIPAL CIRCUIT TRIAL COURT
ALTAVAS, BALETE
ALTAVAS, AKLAN

ELISA DE PABLO.
Plaintiff,

- versus - Civil Case No. 319-B

For: Forcible Entry With Prayer for
Preliminary Mandatory Injunction
and Damages.

MYLENE O. BACAYANA and

All other persons acting under
her authority
Defendants.

x-------------------------------------------------x

ANSWER WITH COUNTERCLAIM

Defendant, through the undersigned counsel, most respectfully files
her Answer in response to the Complaint of the Plaintiff and interpose as
well as their counterclaim against the latter, to wit:

MATERIAL DATE

1. On April 20, 2021, defendant received a copy of the summons

with the complaint, hence, the filing of the Answer with
Counterclaim is within the reglementary period of the Rules of
Court.

ADMISSIONS AND DENIALS

2. Paragraphs 1,2 and 3 are ADMITTED insofar as the personal

circumstances of the parties are concerned with additional
averment that defendant may be served with all court processes
through the undersigned counsel.

3. Paragraphs 4 and 5 are DENIED for lack of information or

knowledge sufficient to form a reasonable belief thereof.

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 4. The allegations in Paragraph 6 are vehemently and specifically
DENIED for being false and perjurious, the truth being that stated
in the affirmative and special defenses hereunder.

5. In Paragraph 7 of the Complaint, plaintiff mentioned the Judicial

Affidavits of witnesses. Thus,the allegations in the Judicial Affidavit
of witness JOSEPH DE PABLO trying to prove that plaintiff and her
family have an open, continuous, exclusive, notorious and adverse
possession in the concept of an owner, of the land in question for
more than 50 years until they were disturbed last 7 June 2020
when it was fenced, is DENIED for being false, the truth being that
stated in the affirmative and special defenses hereunder. Likewise,
the allegations in Question Nos. 19, 20 and 21, that on June 2,
2020, defendant and about five (5) men carrying backpacks and
armed with bolo, arrived to fence the land, and that on June
7,2020, defendant and ten 10 men armed with bolo, shovel,
hammer and digging bar arrived in the alleged plaintiff’s land, are
denied, the truth being that stated in the affirmative and special
defenses hereunder. The rest of the allegations in the Judicial
Affidavit of witness JOSEPH DE PABLO are also DENIED for lack of
information or knowledge sufficient to form a reasonable belief
thereof.

6. The allegation of witness DIVINA DE PABLO in Question No. 10 of

her Judicial Affidavit that she is residing on the land in question is
DENIED for being false. The truth is that the portion of the
land in question is vacant and only coconut trees and other
kinds of trees were planted thereon by defendant’s family. The
rest of her allegations in the Judicial Affidavit trying to prove that
plaintiff and her family have an open, continuous, exclusive,
notorious and adverse possession in the concept of an owner, of
the land in question for more than 50 years until they were
disturbed last 7 June 2020 when it was fenced, is DENIED for
being false, the truth being that stated in the affirmative and
special defenses hereunder.

7. The allegation of witness DIVINA DE PABLO in Question Nos. 28,

29 and 30 of her Judicial Affidavit that there was an Amicable
Settlement dated May 21, 2020 (marked by plaintiff as Exhibit “P”)
executed by the parties to have the land surveyed to determine
the boundary of their properties is ADMITTED.

8. But insofar as the allegations in Question Nos. 31, 32, 33 are

concerned, that they were not able to survey their property, and

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 that defendant together with ten (10) armed men with bolo,
shovel, hammer, and digging bar, too many of them and they
were carrying weapons, are DENIED for being false and
perjurious, the truth being that stated in the affirmative and
special defenses hereunder. The rest of the allegations in the
Judicial Affidavit of witness DIVINA DE PABLO are also DENIED for
lack of information or knowledge sufficient to form a reasonable
belief thereof.

9. The allegations in the Judicial Affidavit of witness LILY PATRIARCA

trying to prove that plaintiff and her family have an open,
continuous, exclusive, notorious and adverse possession in the
concept of an owner, of the land in question for more than 50
years until they were disturbed last 7 June 2020 when it was
fenced, is DENIED for being false, the truth being that stated in
the affirmative and special defenses hereunder. The rest of the
allegations in the Judicial Affidavit of witness are also DENIED for
lack of information or knowledge sufficient to form a reasonable
belief thereof.

10. The allegations in the Judicial Affidavit of witness ARMANDO

FELIPE trying to prove that plaintiff and her family have an open,
continuous, exclusive, notorious and adverse possession in the
concept of an owner, of the land in question for more than 50
years until they were disturbed last 7 June 2020 when it was
fenced, is DENIED for being false, the truth being that stated in
the affirmative and special defenses hereunder.

11. The allegations in the Judicial Affidavit of witness ARMANDO

FELIPE in Question Nos. 19, 20, 21 and 23 that the barangay hall
was built upon the consent of Benito de Pablo and that nobody
disturbed or objected to the construction of the Barangay Hall
because it is common knowledge and recognized in the barangay
that Benito de Pablo and later on Eliza de Pablo are the owners of
the land are DENIED for being false. The truth is that half of the
portion of the barangay hall is owned by defendant’s family, and
that defendant’s family, the heirs of Josue S. Obrique, consented
to its construction because it was for the benefit of the
community. As a matter of fact, aside from the portion of land
where half of the barangay hall was built, a portion of lot just
across the barangay hall where the barangay outpost was
constructed and a portion of lot where a waiting shed was
constructed were also both donated by defendant’s family to the
barangay during the term of the witness, former barangay captain

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 Armando Felipe for the benefit of the community. Not only that,
during the lifetime of Atty. Josue Obrique, and now his heirs,
consented to the construction of the barangay road, which
traversed their property (LOT 88-A, portion of Lot 88 PSC-34
Balete Cadastre). Hence, a portion of Lot 88-A with more or less
305 square meters is still located across the barangay road. The
rest of the allegations in the Judicial Affidavit of witness are also
DENIED for lack of information or knowledge sufficient to form a
reasonable belief thereof.
12. Further, former barangay captain ARMANDO FELIPE is a biased
witness considering his relationship with the plaintiff. Felipe’s
daughter is married to the nephew of plaintiff. All other witnesses
are surnamed DE PABLO.

13. The allegation in Paragraph 8 regarding the Deed of

Adjudication with Sale (Exhibit “A”) is DENIED for lack of
information or knowledge sufficient to form a reasonable belief
thereof.

14. The allegations in Paragraphs, 9 and 10 regarding the series of

Tax Declarations in the name of Benito de Pablo and Elisa de
Pablo (Exhibits “B” to “K”), and Tax Clearance (Exhibit “L”) are
also DENIED for lack of information or knowledge sufficient to
form a reasonable belief thereof.

15. The allegation in Paragraph 11 that the land in question has

always been bounded by the barangay road on the north is
DENIED for being false because in Tax Declaration No. 05-004-
000364 in the name of Benito de Pablo marked as Exhibit “H” by
plaintiff, it is crystal clear that the land in question is bounded by
the land of Ildefonso Jimera on the north.

16. Moreover, the SKETCH PLAN of the entire Lot 88-A containing
an area of 168,245 sq.m., conducted and prepared for JOSUE
OBRIQUE by REYNALDO LOPEZ, Geodetic Engineer, R.L. Lopes
Surveying and Realty Network sometime in 2002, RELOCATION
SKETCH PLAN of the entire Lot 88-A conducted and prepared for
JOSUE OBRIQUE by MARY CHRISTINE R. DELA ROSA, Geodetic
Engineer, on May 26, 2020, and another RELOCATION SKETCH
PLAN of Lot 88A(portion) covering only the subject lot with 305
sq.meters, conducted and prepared for JOSUE OBRIQUE by MARY
CHRISTINE R. DELA ROSA, Geodetic Engineer, in Aril 2021, all
show that a portion with an area of 305 sq.m. more or less of Lot

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 88-A is still located across barangay road, as the barangay road
traversed Lot 88-A, and that Lot 88-A is bounded by Lot 279.

17. Be it noted that the survey on May 26, 2020 was conducted
upon due notice to the adjoining owners and with the active
participation by plaintiff and her family, namely, plaintiff ELIZA,
ROMEO, JOSEPH, RHANDYU, DIVINA, MICHELLE, NERWION,
CHILMA all surnamed DE PABLO, and BRGY. CAPT. MODESTO
AMANCIO, JR. and by also taking into consideration the
boundaries of their lot as described in their own documents shown
to the surveyor.

18. Copies of SKETCH PLAN conducted and prepared by REYNALDO

LOPEZ, Geodetic Engineer, R.L. Lopes Surveying and Realty
Network sometime in 2002, RELOCATION SKETCH PLAN
conducted and prepared by MARY CHRISTINE R. DELA ROSA,
Geodetic Engineer, on May 26, 2020, and another RELOCATION
SKETCH PLAN conducted and prepared by MARY CHRISTINE R.
DELA ROSA, Geodetic Engineer, on May 26, 2020, are hereto
attached and marked as EXHIBITS “1”, “2” and “3”,
respectively.

19. Likewise, the allegation in Paragraph 11 in so far as the

subdivision plan of Lot 279 prepared for MARIA CADIZ (Exhibit
“M”) is concerned, is DENIED because that said subdivision plan
was prepared without due notice to the adjoining owners
particularly to the defendant’s family as owner of adjoining lot 88-
A. The survey was done unilaterally and without taking
consideration the boundaries of the adjoining lots described in
their own documents. More so, that the subdivision plan is not in
the name of plaintiff or her family but of a certain Maria Cadiz.
The rest of the allegations in Paragraph 11 regarding OCT. No. P-
6947 (Exhibit “N”), Deed of Partition with Confirmation of Sale
(Exhibit “O”) are also DENIED for lack of information or knowledge
sufficient to form a reasonable belief thereof.

20. The allegation in Paragraph 12 is DENIED for being false, the

truth being that stated in the affirmative and special defenses
hereunder.

21. The allegation in Paragraph 13 in so far as demand to vacate is

concerned, is DENIED for being false. The truth of the matter is
that no demand was made to defendant because plaintiff knew
that there was already an amicable settlement and a final
agreement between plaintiff and her family and defendant
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 regarding the boundary dispute subject of this complaint. The
allegation that this case was referred to the Barangay Lupon for
mediation is ADMITTED, however, with respect to the allegation
that, no settlement was made because of the refusal of defendant
to vacate the property and to remove the fence to the damage
and prejudice of the plaintiff, is DENIED, for being false. The truth
is that the reason why there was no settlement made was because
the issue on boundary dispute was already settled between the
parties as evidenced by the amicable settlement dated May 21,
2020 and final agreement dated July 11, 2020 after survey of both
Lot 279 and Lot 88-A.

22. The allegations in Paragraph 14 is DENIED for being untrue,

the truth being that stated in the affirmative and special defenses
hereunder.

23. Plaintiff is NOT entitled to the extra-ordinary remedy of

INJUNCTION. While Section 15, Rule 70 of the Rules of Court
provides that the plaintiff may be granted a writ of preliminary
prohibition or mandatory injunction in accordance with the
provisions of Rule 58 hereof, to prevent the defendant from
committing further acts of dispossession against the plaintiff, yet,
herein plaintiff is NOT entitled to the extra-ordinary remedy of
Injunction because settled is the rule that a boundary dispute, as
in this case, can only be resolved in the context of an accion
reivindicatoria, and not in an ejectment case. xxx A boundary
dispute cannot be settled summarily under Rule 70 of the Rules of
Court, the proceedings under which are limited to unlawful
detainer and forcible entry.1
24. Plaintiff is not also entitled to the extra-ordinary remedy of
injunction on the ground that plaintiff did not comply two
important requisite conditions, namely: (1) the right to be
protected exists prima facie, and (2) the acts sought to be
enjoined are violative of that right. 2 The violation sought to be
prevented must cause an irreparable injustice, which is not true in
this case.

AFFIRMATIVE DEFENSE

1
Heirs of Johnny Aoas vs As-il (GR 219558, Oct. 19, 2016),
2
Philippine Nationai Bank v. Cast alloy Technology Corporation, 684 Phil 438, 445 (2012) [Per J. Reyes, Second
Divi5ion] citing Los Banos Rural Bank, Inc. v. Aj!·ica, 433 Phil. 930, 935 (2002) [Per J. Panganiban, Third Division].
See also Power Sites and Signs, Inc. v. United Neon, 620 Phil. 205, 217 (2009) [Per J. Del Castillo, Second Division].

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 25. Defendant reiterates, repleads and incorporates by reference all
the foregoing insofar as they are material and additionally submit
that the Complaint should be dismissed because:

A. THE COMPLAINT AND EVIDENCE PRESENTED BY THE

PLAINTIFF SHOW THAT THE INSTANT CASE ACTUALLY INVOLVES
A BOUNDARY DISPUTE, WHICH CANNOT BE RESOLVED IN A
FORCIBLE ENTRY CASE.

26. Perusal of the complaint and evidence presented by the plaintiff

would show that the meat of the controversy between herein
parties is the actual boundaries or the metes and bounds of their
respective lots.

27. The complaint alleged that plaintiff and her predecessors-in-

interest have been in continuous, peaceful and adverse possession
of the lot 279 with an area of 4379 hectares for more than 50
years now until 7 June 2020 when by force, intimidation, threat,
strategy and stealth, the defendant with the aid of armed men
took over the possession of a portion of lot 279 by fencing the
houses of her relatives. The plaintiff and her relatives no longer
have the access of their land. They are prisoners in their own
land.

(Emphasis supplied).

28. In the Judicial Affidavits of the witnesses, JOSEPH DE PABLO,

LILY PATRIARCA, ARMANDO FELIPE, DIVINA DE PABLO and
plaintiff ELIZA DE PABLO, they all alleged that, to quote:

28.1. JUDICIAL AFFIDAVIT OF LILY PATRIARCA:

Question No. 18: When was that when a fence was built on the
land?
Answer No. 18: I noticed a fence enclosed the houses Arcadio de
Pablo, Nerwin de Pablo and Edgar de Pablo.

Question No. 19: What else did you notice?

Answer No. 19: It is right outside the door of their houses, making
egress and ingress extremely difficult especially for the children.
They are like prisoners inside their houses.

28.2. JUDICIAL AFFIDAVIT OF JOSEPH DE PABLO

Question No. 21: Where is the fence built?

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 Answer No. 21: It enclosed the houses of Arcadio de Pablo,
Nerwin de Pablo and Edgar de Pablo. It is right outside the door of
their houses, making egress and ingress extremely difficult
especially for the children. They are like prisoners inside their
houses. In fact, my nephews and nieces are often injured because
the barbwire obstruct their way.

28.3. JUDICIAL AFFIDAVIT OF ARMANDO FELIPE

Question No. 27: When was that when a fence was built on the
land?
Answer No. 27: I noticed the fence in the afternoon of 7 June
2020 when I arrived from the farm.

Question No. 28: What else did you notice?

Answer No. 28: It enclosed the houses of Arcadio de Pablo,
Nerwin de Pablo and Edgar de Pablo. It is right outside the door of
their houses, making egress and ingress extremely difficult
especially for the children. They are like prisoners inside their
houses.

28.4. JUDICIAL AFFIDAVIT OF PLAINTIFF ELIZA DE PABLO

Question No. 21: You said earlier that your blood pressure shoot
up and there was constriction in your chest when you noticed the
commotion. Considering your medical condition, why are
you filing this case?
Answer No. 21: Because members of my family are not free to go
in and out of their houses. They are suffering most especially my
grandchildren who are still minors. In fact, they often suffer from
cuts when they get out of the barbwire enclosing their houses.

(Emphasis supplied).

29. It is clear that plaintiff filed this case only because members of
her family are not free to go in and out of their houses.

30. Nowhere in the complaint and their testimonies did plaintiff and
her witnesses claim that defendant illegally occupied their
property.

31. Plaintiff likewise alleged that their property is bounded by the

barangay road. However, based on the Tax Declaration No. 05-
004-000364 in the name of Benito de Pablo from whom plaintiff
allegedly bought the property, and based also on the surveys
conducted for Josue Obrique, father of defendant, defendant and

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 her family’s property was bounded by Lot 279. Lot 279 was
previously owned by Ildefonso Jimera. That according to the
surveys, defendant and her family still own 305 sq.m, more or
less, across the barangay road which is bounded by the lot 279
owned by plaintiff, as the barangay road traversed Lot 88-A.

32. Given the foregoing allegations, this is not a proper case for
forcible entry wherein one party unlawfully deprives another of
possession of the property subject of the litigation. It is a
boundary dispute wherein the plaintiff claimed that the fence
constructed by the plaintiff allegedly encroached a portion of her
property, which is the portion from the fence to the barangay
road.

33. Hence, the case should be dismissed outright. On this matter,

Manalang v. Bacani3 is quite instructive:

“x x x a boundary dispute must be resolved in the context of

accion reivindicatoria, not an ejectment case. The boundary
dispute is not about possession, but encroachment, that is,
whether the property claimed by the defendant formed part of
the plaintiff’s property. A boundary dispute cannot be settled
summarily under Rule 70 of the Rules of Court, the proceedings
under which are limited to unlawful detainer and forcible entry.
In unlawful detainer, the defendant unlawfully withholds the
possession of the premises upon the expiration or termination
of his right to hold such possession under any contract, express
or implied. The defendant’s possession was lawful at the
beginning, becoming unlawful only because of the expiration or
termination of his right of possession. In forcible entry, the
possession of the defendant is illegal from the very beginning,
and the issue centers on which between the plaintiff and the
defendant had the prior possession de facto.6

34. In Sarmiento v. Court of Appeals, 320 Phil. 146, 156 ( 1995),

the Supreme Court also held that, “Opposing possessory rights
over certain areas of adjacent lots, arising from claims of
ownership thereof, cannot be resolved in a summary action such
as an ejectment suit.7 The issues involved in such a controversy
should be fully threshed out in an action like accion
reivindicatoria,8 especially when plaintiff fails to establish actual
3
G.R. No. 156995, January 12, 2015.

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 prior possession. In a much earlier ruling of this Court, it was
already held therein that "[i]f [a party] is indeed the owner of the
premises subject of this suit and she was unlawfully deprived of
the real right of possession or the ownership thereof, she should
present her claim before the regional trial court in an accion
publiciana or an accion reivindicatoria, and not before the
municipal trial court in a summary proceeding of unlawful detainer
or forcible entry.”

35. Thus, the instant complaint for forcible entry should he

dismissed outright for lack of merit. It is important to emphasize
that the legal remedy when there is a dispute, with respect to the
boundaries of two adjoining properties covered by two different
Torrens Title, is an accion reivindicatoria. This finds support in the
case of the Heirs of Johnny Aoas vs As-il (GR 219558, Oct. 19,
2016), for boundary disputes.

B. NO STEALTH, FORCE, VIOLENCE, STRATEGY OR INTIMIDATION

WAS EMPLOYED IN CONSTRUCTING THE FENCE IN THE SUBJECT
LOT.

36. On May 19, 2020, defendant filed a complaint against Divina de

Pablo and Michelle de Pablo, the actual possessors of the portion
of Lot 279 adjacent to the boundary of the lot of defendant for
determination of boundary dispute involving their properties with
the Office of the Barangay, Barangay Calizo, Balete, Aklan.

37. The complaint with the barangay stemmed from the fact that
on May 17,2020, defendant, being the co-owner and actual
possessor of Lot 88A, saw Michelle de Pablo, niece of Eliza de
Pablo and daughter of Divina de Pablo with laborers constructing a
lay out of the house which was overlapping the property of
defendant with few meters. Thus, she approached Michelle and
Divina to remind them of the existing “mohon” thereon as the
boundary of their properties. Divina, however, claimed that
her property is bounded by the barangay road. Defendant
reminded her that since time immemorial, she and her family had
been planting coconut trees and harvesting copra from said lot,
starting from the long existing mohon found thereon up to the
barangay road. Divina then told defendant that she had just
bought the property from plaintiff Eliza, and when she bought it,
Eliza told her that her property was bounded by the barangay
road. So, she was claiming the property. Defendant told her that
in order to avoid further misunderstanding, it would be better to
just settle the boundary dispute before the barangay. Hence,
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 defendant filed a complaint on May 19,2020 against Divina de
Pablo and Michelle de Pablo with the barangay office.

38. During the mediation and conciliation before the Lupon on May
21, 2020, the parties agreed to survey the property to be paid by
defendant. They also agreed that upon the survey and
determination of the boundary of both Lot 279 and Lot 88-A,
defendant will fence her boundary. Defendant then hired Engr.
Mary Christine dela Rosa and her surveyors to conduct the survey.
Upon notice to the adjoining owners and with the active
participation and presence of the plaintiff Eliza de Pablo and her
family, and the Barangay Officials, the survey was conducted on
May 26, 2020. Copy of the Certification dated April 26,2021 issued
by the Punong Barangay Modesto R. Amancio Jr is hereto attached
and marked as EXHIBIT “4”.

39. Upon completion of the survey and the boundary was marked
where the old and existing mohon placed by cadaster was also
located, defendant and her laborers constructed the fence as
agreed in the amicable settlement. The fencing was witnessed by
the plaintiff and the family and assisted by the police to ensure
peace and order.

40. However, few weeks later, plaintiff and Divina de Pablo told
defendant that they would also cause the relocation survey of
their property. They said they don’t trust the first surveyor as
defendant was the one who paid the surveyor. Defendant agreed.
So, on July 11, 2020, after they finished the survey with Surveyor
Dela Cruz of Maglajos Surveying Office hired by plaintiff, and upon
confirming that defendant’s fence was constructed within her
property, plaintiff’s family, who are the actual possessors of the
property adjacent to the boundary, namely Divina de Pablo,
Nerwin de Pablo and Chilma de Pablo, and defendant Mylene
Bacayana, executed a final document stating that they have
already complied with the amicable settlement dated May 21,
2020 and have already agreed to the boundary of their respective
lots.

41. With the execution and signing of the final document stating
that both parties have already settled the boundary dispute,
defendant thought everything was already all right. She was
shocked, however, when the same complaint for boundary dispute
was filed by plaintiff with the barangay. It is to be noted that
plaintiff was actively participating in the settlement proceedings
and survey of the properties. In fact, she was the one who hired
and paid the Maglajos Surveying Services to survey her property.

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 Plaintiff just could not accept the truth that upon survey of their
property by Maglajos Surveying Services, it was found that indeed,
the long existing “mohon” and the fence constructed by defendant
pursuant to the amicable settlement were within the property of
the defendant. So, she filed this unnecessary and unwanted suit
for forcible entry and did not attach the survey plan conducted
and prepared by their own surveyor, Surveyor Dela Cruz of
Maglajos Surveying Services, as it was unfavorable to her.

42. Verily, it is clear that no stealth, violence, intimidation or

strategy was employed in constructing the fence because the
fencing was done pursuant to their amicable settlement and with
the assistance of the barangay office and the police authorities to
ensure peace and order during the enforcement of said amicable
settlement.

Copies of the Amicable Settlement dated May 21, 2020 and the
Final Document dated July 11, 2020 are hereto marked as
EXHIBITS “5” AND “6”, respectively.

Copy of the Letter sent by Mylene Bacayana to the Office of

Barangay Calizo to ask for the office's assistance during the
fencing and implementation of the amicable settlement dated May
21, 2020, is hereto attached and marked as EXHIBIT “7”.

Copy of the picture posted on Facebook by Mary Grace de

Pablo, actual possessor of the property adjacent to boundary,
daughter of witness Divina de Pablo and niece of plaintiff Eliza de
Pablo, taken during the construction of fence showing that there
was even the presence of police authorities to ensure peace and
order in the enforcement of the amicable settlement, is hereto
marked as EXHIBIT “8”.

43. Moreover, careful perusal of the complaint would show that

plaintiff failed to allege the fact of entry on the subject premises
by the defendant by force, intimidation, violence or stealth. In her
complaint, plaintiff merely alleged that, “with the aid of armed
men took over the possession of a portion of the above-described
parcel of land by fencing the houses of her relatives.” 4 And in the
judicial affidavits of her witnesses, the witnesses only echoed each
one’s statement, to quote: “Last 7 June 2020, at around 8 or 9
o’clock in the morning, Mylene Bacayana together with ten (10)
armed men with bolo, shovel, hammer and digging bar, arrived on
the land. They also carried barbwire. They were too many of them
4
Paragraph 6 of the Complaint.

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 and they were carrying weapons.” Obviously, plaintiff was trying
to mislead this Honorable Court that the tools being carried by
mere laborers were weapons used to intimidate her and her
family. But after a painstaking scrutiny of the complaint, it is
apparent that there was no any allegation that defendant
and the laborers entered the premises by threat,
intimidation, force, strategy or violence. Clearly, the
allegation only means that the defendant and her laborers were
carrying the tools used for constructing the fence.

44. For failure of the plaintiff to allege the fact of entry on the
herein subject premises by the defendant by force, intimidation,
violence or stealth, the present action for forcible entry must
exigently fail.

C. PLAINTIFF AND HER FAMILY HAD NO ACTUAL AND PRIOR

POSSESSION OVER THE PROPERTY.

45. Defendant had no actual and prior possession over the subject
property because since time immemorial (1945) up to the present,
defendant and her family have enjoyed continuous, peaceful and
uninterrupted possession and ownership over the subject
property.

46. This is evidenced by Tax Declaration No. 1154 covering Lot

88A, which includes the land in question, in the name of Ildefonso
Jimera, predecessor-in-interest of defendant’s family, and with Tax
under this declaration begins with the year 1945, and hereto
attached and marked as EXHIBIT “9”, and Tax Payments hereto
attached as EXHIBIT “9-A”.

47. Then, said Tax Declaration was cancelled and transferred in the
name of Josue Obrique with Tax Declaration No. 17-03-0004-
00401 in the name of Josue Obrique, which is hereto attached and
marked as EXHIBIT “10”

48. This is also evidenced by the fact that as early as 2002, a

sketch plan was prepared for Josue Obrique showing the metes
and bounds of Lot 88-A that covers the subject property bounded
by the fence and Lot 279¹. (Exhibit “1”).

49. This is also evidenced by the two (2) sketch plans conducted
and prepared for Josue Obrique by the geodetic engineer Christine
Dela Rosa pursuant to the amicable settlement of the parties

13
 showing the metes and bounds of Lot 88-A that covers the subject
property bounded by the fence. (Exhibits “2” and “3”).
50. This is also evidenced by the boundary marker stones or
“mohon” by the cadastre. Copy of the picture is hereto attached
and marked as EXHIBIT “11”.

51. Judicial Affidavit of witness FELOMINA R. PASTOLERO is also

hereto attached and marked as EXHIBIT “12” to prove that
defendant and her predecessors-in-interest have enjoyed
continuous, peaceful and uninterrupted possession and ownership
over the subject property since time immemorial (1945) up to the
present.

52. The allegation of plaintiff that there were improvements

constructed on the subject property such as the houses of her
family, is deceptive and confusing, because the lot in question
fenced by defendant is vacant and only coconut trees harvested
by plaintiff as copras are planted thereon. The portion of Lot 279
wherein the houses of said plaintiff’s family were constructed is
the portion adjacent to Lot 88A and bounded by the fence of Lot
88A.

53. Thus, plaintiff alleged prior and actual possession ONLY over
the Lot 279 but did not allege actual and prior possession over the
portion of property allegedly encroached by defendant, which is
the portion outside the fence.

54. Indeed, the matter subject of the present action is that portion
only of Lot No.279 and not Lot 279 in its entirety. Undoubtedly,
said portion was never occupied by plaintiff before the filing of this
case. It was the defendant and her family who had the actual and
prior possession in the concept of an owner over said portion of
property having planted coconut trees thereon and harvested
copra from said coconut trees.

D. THE BOUNDARY DISPUTE HAS ALREADY BEEN SETTLED AS

EVIDENCED BY THE AMICABLE SETTLEMENT DATED MAY 21,
2020 AND BY THE DOCUMENT DATED JULY 11, 2020 SHOWING
COMPLIANCE OF THE AMICABLE SETTLEMENT STATING THAT,
“xxx sa anda nga final na istorya o desisyon sanda hay
nagkasugot sa boundary.”

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 55. In the case of Sebastian vs. Lagmay, G.R. No. 164594, April 22,
2015, the Supreme Court is clear, to quote:

“The amicable settlement and final agreement have the

force and effect of a final judgment.

Under Section 416 of the Local Government Code, the amicable

settlement and arbitration award shall have the force and effect
of a final judgment of a court upon the expiration of ten (10)
days from the date of its execution, unless the settlement or
award has been repudiated or a petition to nullify the award
has been filed before the proper city or municipal court.

Moreover, Section 14, Rule VI of the Katarungang

Pambarangay Implementing Rules states that the party’s failure
to repudiate the settlement within the period of ten (10) days
shall be deemed a waiver of the right to challenge the
settlement on the ground that his/her consent was vitiated by
fraud, violence or intimidation.” (Emphasis supplied).

56. In the case of Quiros, et al vs. Arjona et al., G.R. No. 158901,
March 09, 2004, the Supreme Court held that, “Cognizant of the
beneficial effects of amicable settlements, the Katarungang
Pambarangay Law (P.D. 1508) and later the Local Government
Code provide for a mechanism for conciliation where party-
litigants can enter into an agreement in the barangay level to
reduce the deterioration of the quality of justice due to
indiscriminate filing of court cases. Thus, under Section 416 of
the said Code, an amicable settlement shall have the force and
effect of a final judgment of the court upon the expiration of 10
days from the date thereof, unless repudiation of the settlement
has been made or a petition to nullify the award has been filed
before the proper court.”

57. In the present case, the plaintiff and her family who are the
actual possessors of the property adjacent to boundary executed
and signed an amicable settlement before the Barangay Office on
May 21, 2020, to quote,

“We the complainant and respondents in the above-caption

case, do hereby agree to settle our dispute as follows:

Nga do complainant ag do mga respondents hay nagkita iya sa

Barangay Hall ko petsa 21 it Mayo 2020 mga alas-nuebe (9:00) do
oras sa agahon para estoryahan do andang problema ag sa
andang pag-istorya do complainant hay nagdesisyon nga anang

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 iparelocate do anang eogta ag kon halimabwa nga hanakpan do
eogta it complainant sa napaubra nga baeay ko mga respondents
hay ana nga pakuraean do nasambit nga eogta kutob sa anang
hasakpan ag sanda hay nagkasugot ag do kaso hay gina
konsidera nga sarado ag tapos eon.

And bind ourselves to comply honestly and faithfully with the

above terms or settlement.” (Exhibit “5”).

58. On July 11, 2020, plaintiff and her family executed and signed
another document before the Barangay Office to prove that the
amicable settlement dated May 21,2020 was duly enforced and
that boundary dispute between the two (2) lots was already
settled, after the two lots were surveyed by their respective
geodetic engineers, for the plaintiff is Surveyor Dela Cruz from
Maglajos Surveying Services and for the defendant is Engr. Mary
Christine Dela Rosa. The final agreement document is hereto
quoted as follows:

“Ku petsa 11 it Hulyo 2020 do magkadueon sa eogta nga

sanday Mylene O. Bacayana, sa legal na edad, may asawa ag
naga istar sa Sitio Dapdap it daya nga Barangay ag si Divina L. De
Pablo sa legal na edad, baeo ag naga istar sa Sitio Maeobog hay
nagistorya na hanungod sa problema sa anda nga dueonan sa
anda nga eogta nga nahamtang sa Sitio Maeobog it daya nga
Barangay ag sa anda nga final na istorya o desisyon sanda hay
nagkasugot sa boundary.” (Exhibit “6”).

59. The amicable settlement and final document were also certified
by the Office of Barangay, Barangay Calizo, Balete, Aklan as
having executed and signed before the barangay office. Copies of
the Certifications dated April 26, 2021 are hereto attached and
marked as EXHIBITS “13” AND 14, respectively.

57. Further, it is worth-noting that by plaintiff’s own admission in

her complaint, there was indeed an amicable settlement executed
by her family and defendant ending the boundary dispute of their
properties. In the judicial affidavit of witness Divina de Pablo, she
admitted that plaintiff and her family had already executed an
amicable settlement with defendant regarding the boundary
dispute of Lot 279 and Lot 88-A, to quote:

“28. Q: What happened at the barangay?

A: During the meeting last 21 May 2020, we signed an
agreement to have the land surveyed. We were confident

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 that everything is in order because we have been residing
on the land for so long.”

29. Q: If that agreement is shown to you, will you be able to

identify it?
A: Yes.

30. Q: I am showing to you an amicable settlement dated 21

May 2020. Is this the agreement you were referring to?
A: Yes.”

(Italics supplied).

58. Therefore, the instant complaint should be dismissed on the

ground that the amicable settlement and final document have the
force and effect of a final judgment.

E. PLAINTIFF IS NOT ENTITLED TO ACTUAL DAMAGES, RENTAL

AND ATTORNEY’S FEES.

59.Plaintiff cannot be awarded actual damages, rental and attorney’s

fees in the absence of any evidence of competent proof or the
best evidence obtainable such as receipts to justify an award
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therefore , and in the absence of any evidence showing that the
defendant acted in a wanton, fraudulent, reckless, oppressive, or
malevolent manner as provided in Article 2232 and Article 2208 of
the Civil Code.

F. THE JUDICIAL AFFIDAVITs OF THE WITNESSES DO NOT

CONTAIN JURATS.

60. The Judicial Affidavits of witnesses did not contain a jurat with
the signature of the notary public who administers the oath or an
officer who is authorized by law to administer the same. Only the
attestations of the lawyer were notarized.

COUNTERCLAIM

61.Defendant reiterates, repleads and incorporates by reference all

the foregoing insofar as they are material and additionally submit that he is
entitled to relief arising from the filing of this malicious and baseless suit,
as follows:

61.1. That due to this unwanted suit, defendants were

constrained to litigate and secure the services of counsel for a fee

5
People v. Ereno, Feb. 22, 2000

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 of FIFTY THOUSAND PESOS (PHP50,000.00) as acceptance fee
and Three Thousand (PHP3,000.00) per appearance in court.

Copy of the Retainer Contract dated April 26, 2021 is hereto

attached and marked as EXHIBIT “15”.

61.2 That due to this baseless and malicious suit, defendants

suffered mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation, and
similar injury, for which the plaintiff must be made to pay
defendants moral damages in the amount of FIFTY THOUSAND
PESOS (Php50, 000.00).

NAMES OF WITNESSES

62. MYLENE BACAYANA. The testimony of the witness is being

offered to prove the following:

1) That she and her family have been in actual and prior
possession in the concept of an owner of the property in
question since 1945.
2) That Lot 88A is bounded by Lot 279.
3) That before she fenced the subject property, there was already
an old and existing marking stone or mohon by cadaster in the
same location of the fence to show the boundary between Lot
279 and Lot 88A.
4) That the fence she constructed is within her lot, Lot 88A.
5) That she fenced the property pursuant to the amicable
settlement dated May 21, 2020.
6) She did not fence the property by force, intimidation, stealth,
violence or strategy but in compliance with the amicable
settlement.
7) That the dispute between plaintiff and defendant is a boundary
dispute over their two (2) lots, Lot 279 and Lot 88A.
8) That the amicable settlement on the boundary dispute has
already been implemented with the assistance of the barangay
office of Barangay Calizo, Balete, Aklan.
9) To prove other allegations in the Answer with Counterclaim.
10) To identify documents relevant to the Answer with
Counterclaim.

Attached is the Judicial Affidavit of Mylene O. Bacayana and

marked as EXHIBIT “16”.

63. FELOMINA R. PASTOLERO. The testimony of the witness is

being offered to prove the following:

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 1) That she is the witness in the execution and signing of the final
document dated July 11, 2020 stating that the boundary
dispute of Lot 279 and Lot 88A has already been settled and
the amicable settlement dated May 21, 2020 has been
implemented by plaintiff and her family and defendant on July
11, 2020.
2) That being the co-owner of Lot 88 previously owned by their
grandfather, Ildefonso Jimera, she has personal knowledge
that Lot 88A is bounded by Lot 279.
3) That defendant and her family have been in actual and prior
possession of the subject lot having planted coconut trees
thereon and harvested copra from the coconut trees since
1945.
4) That the subject lot is vacant and only coconut trees and other
trees are planted thereon by defendant.
5) That she was present during the fencing of the property and it
was constructed with the assistance of the barangay office and
Balete police, hence, not effected by violence, force,
intimidation, stealth or strategy.
6) To prove other matters in the Answer with Counterclaim.

Judicial Affidavit of Felomina Pastolero previously marked as

Exhibit “12”.

64. MARY CHRISTINE DELA ROSA. The testimony of the witness

is being offered to prove the following:
1) That she was the geodetic engineer together with her
surveyors that conducted and prepared the surveys of Lot 88A
in May 2020 and April 2021.
2) That Lot88A is bounded by Lot 279.
3) That the area from the Lot 279 boundary and the barangay
road is more or less 305 sq.meters.
4) That the fence is within the property of Lot 88A.
5) To prove other matters in the Answer with Counterclaim.

Attached is the Judicial Affidavit of Mylene O. Bacayana and

marked as EXHIBIT “17”.
65. EMER JIMERA. (Reserved for EXHIBIT “18”). The testimony
of the witness is being offered to prove the following:
1) That he is a tenant of defendant’s family.
2) That he was the one who planted some of the coconut trees
thereon and the one who harvested copra in said portion of land
for the defendant’s family.

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 3) That aside from coconut trees and other kinds of trees, no other
improvements or any house can be found on said land.

PRAYER

WHEREFORE, it is respectfully prayed further of this Honorable Court

that, after due notice and hearings, judgment be rendered, as follows;

1. Ordering the dismissal of the case;

2. Ordering the plaintiff to pay defendants Php50, 000.00 plus
P3,000.00 per appearance in court as attorney’s fees;
3. Ordering the plaintiff to pay defendants moral damages in the
amount of Php50, 000.00.

Other reliefs just and equitable are likewise prayed for.

Paranaque City for Altavas, Aklan, April 27, 2021.

COS GUEVARRA AND ASSOCIATES LAW OFFICE

Counsel for the Defendant
Unit 201, Dona Eusebia Bldg.,
0611 Quirino Avenue, San Dionisio
Paranaque City, 1700
Mobile No. 09989984009
Email: melanieoguevarra@yahoo.com

By:
ATTY. MELANIE OBRIQUE-GUEVARRA
IBP No. 121497; 01-04-21; Pasay City
PTR No. 02571839; 01-04-21; Parañaque City
Roll No. 56511
MCLE Compliance No. VI-0014042

EXPLANATION
(Under Section II, Rule 13 of the
1997 Rules of Civil Procedures)

Copies of the Answer with Counterclaim were furnished unto the

Honorable Court and plaintiff’s counsel via ordinary/ registered mail due to
the pandemic crisis of SARS-COVID19, distance and lack of manpower.

ATTY. MELANIE OBRIQUE-GUEVARRA

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Copy Furnished:

ATTY. MARIENNE M. IBADLIT

Ibadlit and Ibadlit Law Offices
2nd Floor Apsta Bldg.
XIX Martyrs St., Kalibo, Aklan

VERIFICATION AND CERTIFICATION

I, MYLENE O. BACAYANA, of legal age, Filipino citizen and a

resident of Brgy. Calizo, Balete, Aklan, respectively, under oath, depose
and state that:

1. I am the plaintiff in the above-entitled case. As such, I have

caused the preparation of the aforementioned Reply. The allegations
contained therein are true and correct based on my personal knowledge, or
based on authentic documents,

2. The pleadings is not filed to harass, cause unnecessary delay,

or
needlessly increase the cost of litigation;

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 3. The factual allegations therein have evidentiary support or, if
specifically so identified, will likewise have evidentiary support after a
reasonable opportunity for discovery; and

4. I further certify; (i) I have not theretofore commenced any

action or filed any claim involving the same issues in any court, tribunal or
quasi-judicial agency and, to the best of my knowledge, no such other
action or claim is pending therein; (ii) if I should thereafter learn that the
same or similar action or claim has been filed or is pending, I shall report
that fact within five (5) calendar days there from to this Honorable Court.

IN WITNESS WHEREOF, I have hereunto affixed my signature

this ____day of ________2021, in the City of Paranaque, Philippines.

MYLENE O. BACAYANA
Affiant

SUBSCRIBED AND SWORN TO before me, a Notary Public for and in

the Province of Aklan, this _____day of __________________ 2021, by
affiants who have satisfactorily proven to me his identity through his
Identification Card issued at __________________ as competent evidence
of his identity.

Doc. No.__________
Page No.__________
Book No.__________
Series of 2021.

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