G..R. No. 132424             May 2, 2006

SPOUSES BONIFACIO R. VALDEZ, JR. and VENIDA M. VALDEZ, Petitioners, vs.HON. COURT OF APPEALS, SPOUSES GABRIEL FABELLA and FRANCISCA FABELLA, Respondents.

D E C I S I O N

CHICO-NAZARIO, J.:

This petition for review under Rule 45 of the Rules of Court, filed by petitioners spouses Bonifacio R. Valdez, Jr. and Venida M. Valdez, seeks to nullify and set aside the 22 April 1997 decision1 and 30 January 1998 resolution of the Court of Appeals in CA-G.R. SP No. 43492, which reversed the judgment, dated 8 January 1997, of the Regional Trial Court of Antipolo, Rizal, Branch 74, in Civil Case No. 3607, which, in turn, affirmed in toto the decision rendered by the Municipal Trial Court of Antipolo, Rizal, Branch II, in Civil Case No. 2547.

This case originated from a complaint for unlawful detainer filed by petitioners Bonifacio and Venida Valdez against private respondents Gabriel and Francisca Fabella before the Municipal Trial Court of Antipolo, Rizal. The complaint alleges these material facts:

2. That plaintiffs are the registered owner[s] of a piece of residential lot denominated as Lot [N]o. 3 Blk 19 located at Carolina Executive Village, Brgy. Sta. Cruz, Antipolo, Rizal which [they] acquired from Carolina Realty, Inc. Sometime [i]n November 1992 by virtue of Sales Contract, xerox copy of which is hereto attached marked as Annex "A" and the xerox copy of the Torrens Certificate of Title in her name marked as Annex "B";

3. That defendants, without any color of title whatsoever occupie[d] the said lot by building their house in the said lot thereby depriving the herein plaintiffs rightful possession thereof;

4. That for several times, plaintiffs orally asked the herein defendants to peacefully surrender the premises to them, but the latter stubbornly refused to vacate the lot they unlawfully occupied;

5. That despite plaintiffs’ referral of the matter to the Barangay, defendants still refused to heed the plea of the former to surrender the lot peacefully;

6. That because of the unfounded refusal of the herein defendants to settle the case amicably, the Barangay Captain was forced to issue the necessary Certification to File Action in favor of the herein plaintiffs in order that the necessary cause of action be taken before the proper court, xerox copy of which is hereto attached marked as Annex "C";

7. That by reason of the deliberate, malicious and unfounded refusal of the defendants to vacate/surrender the premises in question, the herein plaintiffs were constrained to engage the professional services of counsel thus incurring expenses amounting to TEN THOUSAND PESOS (P10,000.00) representing acceptance fee and additional ONE THOUSAND PESOS (P1,000.00) per appearance, who on July 12, 1994 sent a formal demand was likewise ignored, (sic) copy of which is hereto attached as Annex "D";

8. That likewise by virtue of the adamant refusal of the defendants to vacate/surrender the said premises in question, plaintiff[s] suffered serious anxiety, sleepless nights, mental torture and moral erosion; x x x2

In their answer, private respondents contended that the complaint failed to state that petitioners had prior physical possession of the property or that they were the lessors of the former. In the alternative, private respondents claimed ownership over the land on the ground that they had been in open, continuous, and adverse possession thereof for more than thirty years, as attested by an ocular inspection report from the Department of Environment and Natural Resources. They also stressed that the complaint failed to comply with Supreme Court Circular No. 28-91 regarding affidavits against non-forum shopping.

The Municipal Trial Court (MTC) rendered a decision in favor of the petitioners, ordering private respondents to vacate the property and to pay rent for the use and occupation of the same plus attorney’s fees.

Private respondents appealed the MTC’s decision to the Regional Trial Court (RTC). The RTC, in a decision dated 8 January 1997, affirmed in toto the decision of the MTC.

Undeterred, the private respondents filed a petition for review with the Court of Appeals on 10 March 1997 questioning the decision of the RTC.

In a decision dated 22 April 1997, the Court of Appeals reversed and set aside the decision of the RTC. It held that petitioners failed to make a case for unlawful detainer because they failed to show that they had given the private respondents the right to occupy the premises or that they had tolerated private respondents’ possession of the same, which is a requirement in unlawful detainer cases. It added that the allegations in petitioners’ complaint lack jurisdictional elements for forcible entry which requires an allegation of prior material possession. The Court of Appeals ratiocinated thus:

An examination of the complaint reveals that key jurisdictional allegations that will support an action for ejectment are conspicuously lacking. In particular, an allegation of prior material possession is mandatory in forcible entry, xxx and the complaint is deficient in this respect. On the other hand, neither does there appear to be a case of unlawful detainer, since the

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private respondents failed to show that they had given the petitioners the right to occupy the premises, which right has now [been] extinguished.

x x x

In light of the foregoing, the conclusion is inevitable that the Municipal Trial Court before which the action for ejectment was filed had no jurisdiction over the case. Consequently, the dismissal thereof is in order.

WHEREFORE, the Petition is hereby GIVEN DUE COURSE, and GRANTED. The decision dated 08 January 1997 rendered by the respondent court is hereby REVERSED and SET ASIDE, and judgment is hereby rendered DISMISSING the complaint in Civil Case No. 2547 of the Municipal Trial Court of Antipolo, Rizal for lack of jurisdiction.3

Petitioners filed a motion for reconsideration which was denied in a resolution dated 30 January 1998.4

Hence, the instant petition.

Petitioners submit the following issues for the Court’s consideration5:

A. WHETHER OR NOT THE ALLEGATIONS OF THE COMPLAINT CLEARLY MADE OUT A CASE FOR UNLAWFUL DETAINER.

B. WHETHER OR NOT BASED ON THE ALLEGATION(S) OF THE COMPLAINT, THE MUNICIPAL TRIAL COURT OF ANTIPOLO, RIZAL, CLEARLY HAS ORIGINAL JURISDICTION OVER THE INSTANT COMPLAINT FILED BEFORE IT.

Since the two issues are closely intertwined, they shall be discussed together.

In the main, petitioners claim that the averments of their complaint make out a case for unlawful detainer having alleged that private respondents unlawfully withheld from them the possession of the property in question, which allegation is sufficient to establish a case for unlawful detainer. They further contend that the summary action for ejectment is the proper remedy available to the owner if another occupies the land at the former’s tolerance or permission without any contract between the two as the latter is bound by an implied promise to vacate the land upon demand by the owner.

The petition is not meritorious.

Under existing law and jurisprudence, there are three kinds of actions available to recover possession of real property: (a) accion interdictal; (b) accion publiciana; and (c) accion reivindicatoria.6

Accion interdictal comprises two distinct causes of action, namely, forcible entry (detentacion) and unlawful detainer (desahuico).7 In forcible entry, one is deprived of physical possession of real property by means of force, intimidation, strategy, threats, or stealth whereas in unlawful detainer, one illegally withholds possession after the expiration or termination of his right to hold possession under any contract, express or implied.8 The two are distinguished from each other in that in forcible entry, the possession of the defendant is illegal from the beginning, and that the issue is which party has prior de facto possession while in unlawful detainer, possession of the defendant is originally legal but became illegal due to the expiration or termination of the right to possess.9

The jurisdiction of these two actions, which are summary in nature, lies in the proper municipal trial court or metropolitan trial court.10 Both actions must be brought within one year from the date of actual entry on the land, in case of forcible entry, and from the date of last demand, in case of unlawful detainer.11 The issue in said cases is the right to physical possession.

Accion publiciana is the plenary action to recover the right of possession which should be brought in the proper regional trial court when dispossession has lasted for more than one year.12 It is an ordinary civil proceeding to determine the better right of possession of realty independently of title.13 In other words, if at the time of the filing of the complaint more than one year had elapsed since defendant had turned plaintiff out of possession or defendant’s possession had become illegal, the action will be, not one of the forcible entry or illegal detainer, butan accion publiciana. On the other hand, accion reivindicatoria is an action to recover ownership also brought in the proper regional trial court in an ordinary civil proceeding.14

To justify an action for unlawful detainer, it is essential that the plaintiff’s supposed acts of tolerance must have been present right from the start of the possession which is later sought to be recovered.15 Otherwise, if the possession was unlawful from the start, an action for unlawful detainer would be an improper remedy.16 As explained in Sarona v. Villegas17:

But even where possession preceding the suit is by tolerance of the owner, still, distinction should be made.

If right at the incipiency defendant’s possession was with plaintiff’s tolerance, we do not doubt that the latter may require him to vacate the premises and sue before the inferior court under Section 1 of Rule 70, within one year from the date of the demand to vacate.

x x x x

A close assessment of the law and the concept of the word "tolerance" confirms our view heretofore expressed that such tolerance must be present right from the start of possession sought to be recovered, to categorize a cause of action as one of unlawful detainer - not of forcible   entry .  Indeed, to hold otherwise would espouse a dangerous doctrine. And for two reasons: First. Forcible entry into the land is an open challenge

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to the right of the possessor. Violation of that right authorizes the speedy redress – in the inferior court - provided for in the rules. If one year from the forcible entry is allowed to lapse before suit is filed, then the remedy ceases to be speedy; and the possessor is deemed to have waived his right to seek relief in the inferior court. Second, if a forcible entry action in the inferior court is allowed after the lapse of a number of years, then the result may well be that no action of forcible entry can really prescribe. No matter how long such defendant is in physical possession, plaintiff will merely make a demand, bring suit in the inferior court – upon a plea of tolerance to prevent prescription to set in - and summarily throw him out of the land. Such a conclusion is unreasonable. Especially if we bear in mind the postulates that proceedings of forcible entry and unlawful detainer are summary in nature, and that the one year time-bar to suit is but in pursuance of the summary nature of the action.18 (Underlining supplied)

It is the nature of defendant’s entry into the land which determines the cause of action, whether it is forcible entry or unlawful detainer. If the entry is illegal, then the action which may be filed against the intruder is forcible entry. If, however, the entry is legal but the possession thereafter becomes illegal, the case is unlawful detainer.

Indeed, to vest the court jurisdiction to effect the ejectment of an occupant, it is necessary that the complaint should embody such a statement of facts as brings the party clearly within the class of cases for which the statutes provide a remedy, as these proceedings are summary in nature.19 The complaint must show enough on its face the court jurisdiction without resort to parol testimony.20

The jurisdictional facts must appear on the face of the complaint. When the complaint fails to aver facts constitutive of forcible entry or unlawful detainer, as where it does not state how entry was affected or how and when dispossession started, the remedy should either be an accion publiciana or an accion reivindicatoria in the proper regional trial court.21 Thus, in Go, Jr. v. Court of Appeals,22 petitioners filed an unlawful detainer case against respondent alleging that they were the owners of the parcel of land through intestate succession which was occupied by respondent by mere tolerance of petitioners as well as their deceased mother. Resolving the issue on whether or not petitioners’ case for unlawful detainer will prosper, the court ruled23:

Petitioners alleged in their complaint that they inherited the property registered under TCT No. C-32110 from their parents; that possession thereof by private respondent was by tolerance of their mother, and after her death, by their own tolerance; and that they had served written demand on December, 1994, but that private respondent refused to vacate the property. x x x

It is settled that one whose stay is merely tolerated becomes a deforciant illegally occupying the land the moment he is required to leave. It is essential in unlawful detainer cases of this kind, that plaintiff’s supposed acts of tolerance must have been present right from the start of the possession which is

later sought to be recovered. This is where petitioners’ cause of action fails. The appellate court, in full agreement with the MTC made the conclusion that the alleged tolerance by their mother and after her death, by them, was unsubstantiated. x x x

The evidence revealed that the possession of defendant was illegal at the inception and not merely tolerated as alleged in the complaint, considering that defendant started to occupy the subject lot and then built a house thereon without the permission and consent of petitioners and before them, their mother. xxx Clearly, defendant’s entry into the land was effected clandestinely, without the knowledge of the owners, consequently, it is categorized as possession by stealth which is forcible entry. As explained in Sarona vs. Villegas, cited in Muñoz vs. Court ofAppeals [224 SCRA 216 (1992)] tolerance must be present right from the start of possession sought to be recovered, to categorize a cause of action as one of unlawful detainer not of forcible entry x x x.

And in the case of Ten Forty Realty and Development Corp. v. Cruz,24 petitioner’s complaint for unlawful detainer merely contained the bare allegations that (1) respondent immediately occupied the subject property after its sale to her, an action merely tolerated by petitioner; and (2) her allegedly illegal occupation of the premises was by mere tolerance. The court, in finding that the alleged tolerance did not justify the action for unlawful detainer, held:

To justify an action for unlawful detainer, the permission or tolerance must have been present at the beginning of the possession. x x x

x x x x

In this case, the Complaint and the other pleadings do not recite any averment of fact that would substantiate the claim of petitioner that it permitted or tolerated the occupation of the property by Respondent Cruz. The complaint contains only bare allegations that 1) respondent immediately occupied the subject property after its sale to her, an action merely tolerated by petitioner; and 2) her allegedly illegal occupation of the premises was by mere tolerance.

These allegations contradict, rather than support, petitioner’s theory that its cause of action is for unlawful detainer. First, these arguments advance the view that respondent’s occupation of the property was unlawful at its inception. Second, they counter the essential requirement in unlawful detainer cases that petitioner’s supposed act of sufferance or tolerance must be present right from the start of a possession that is later sought to be recovered.25

In the instant case, the allegations in the complaint do not contain any averment of fact that would substantiate petitioners’ claim that they permitted or tolerated the occupation of the property by respondents. The complaint contains only bare allegations that "respondents without any color of title whatsoever occupies the land in question by building their house in the said land thereby depriving

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petitioners the possession thereof." Nothing has been said on how respondents’ entry was effected or how and when dispossession started. Admittedly, no express contract existed between the parties. This failure of petitioners to allege the key jurisdictional facts constitutive of unlawful detainer is fatal.26 Since the complaint did not satisfy the jurisdictional requirement of a valid cause for unlawful detainer, the municipal trial court had no jurisdiction over the case.27 It is in this light that this Court finds that the Court of Appeals correctly found that the municipal trial court had no jurisdiction over the complaint.

WHEREFORE, the petition is DENIED and the judgment of the Court of Appeals dismissing the complaint in Civil Case No. 2547 of the MTC Antipolo, Rizal for lack of jurisdiction is hereby AFFIRMED.

No pronouncement as to costs.

SO ORDERED.

G.R. No. 132197 August 16, 2005

ROSS RICA SALES CENTER, INC. and JUANITO KING & SONS, INC., Petitioners, vs.SPOUSES GERRY ONG and ELIZABETH ONG, Respondent.

D E C I S I O N

Tinga, J.:

In a Decision1 dated 6 January 1998, the Former First Division of the Court of Appeals overturned the decisions of the Municipal Trial Court (MTC) and the Regional Trial Court (RTC) of Mandaue City, ruling instead that the MTC had no jurisdiction over the subject complaint for unlawful detainer. This petition for review prays for the reversal of the aforesaid Court of Appeals’ Decision.

The case originated from a complaint for ejectment filed by petitioners against respondents, docketed as Civil Case No. 2376, before the MTC of Mandaue City, Branch I. In the complaint, petitioners alleged the fact of their ownership of three (3) parcels of land covered by Transfer Certificates of Title (TCT) Nos. 36466, 36467 and 36468. Petitioners likewise acknowledged respondent Elizabeth Ong’s ownership of the lots previous to theirs. On 26 January 1995, Atty. Joseph M. Baduel, representing Mandaue Prime Estate Realty, wrote respondents informing them of its intent to use the lots and asking them to vacate within thirty (30) days from receipt of the letter. But respondents refused to vacate, thereby unlawfully withholding possession of said lots, so petitioners alleged.

Ross Rica Sales Center, Inc. and Juanito King and Sons, Inc. (petitioners) had acquired the lands from Mandaue Prime Estate Realty through a sale made on 23 March 1995. In turn, it appears that Mandaue Prime Estate Realty had acquired the

properties from the respondents through a Deed of Absolute Sale dated 14 July 1994. However, this latter deed of sale and the transfers of title consequential thereto were subsequently sought to be annulled by respondents in a complaint filed on 13 February 1995 before the Mandaue RTC against Mandaue Prime Estate Realty.2 Per record, this case is still pending resolution.

Meanwhile, the MYC resolved the ejectment case on 24 April 1996, with the decision ordering respondents to vacate the premises in question and to peacefully turn over possession thereof to petitioners.

On appeal, the RTC rendered on 1 March 1997 a judgment affirming the MTC’s decision in its entirety.

On 8 May 1997, respondents filed a notice of appeal. However, on the following day, they filed a motion for reconsideration.

On 23 June 1997, the RTC issued an Order which concurrently gave due course to respondents’ notice of appeal filed on 8 May 1997; denied their motion for reconsideration dated 9 May 1997,3 and granted petitioners’ motion for immediate execution pending appeal.

In a Petition for Certiorari with Injunction filed with the Court of Appeals and treated as a Petition for Review, the appellate court ruled that the MTC had no jurisdiction over said case as there was no contract between the parties, express or implied, as would qualify the same as one for unlawful detainer. Thus, the assailed Orders of the MTC and RTC were set aside.

Petitioners then took this recourse via Petition for Review under Rule 45 of the Rules of Court. The principal issues raised before this Court are: (i) whether the RTC decision has already become final and executory at the time the petition for review was filed; (ii) whether the allegations in the complaint constitute a case for unlawful detainer properly cognizable by the MTC; and, (iii) whether petitioners, as registered owners, are entitled to the possession of the subject premises.

We resolve the first argument to be without merit.

The following sequence of events is undisputed:

(1) On 1 March 1997, the RTC rendered the questioned decision affirming the judgment of the MTC.

(2) On 28 April 1997, respondents received a copy of the aforementioned decision.

(3) On 8 May 1997, respondents filed a Notice of Appeal with the RTC.

(4) On 9 May 1997, respondents filed likewise with the RTC a Motion for Reconsideration of the aforementioned 1 March 1997 decision.

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(5) On 23 June 1997, the RTC of Mandaue issued an Order denying respondents’ Motion for Reconsideration.

(6) On 9 July 1997, respondents received a copy of the aforementioned 23 June 1997 Order.

(7) On 24 July 1997, respondents filed with the Court of Appeals their motion for an additional period of ten (10) days within which to file their Petition for Review.

(8) On 30 July 1997, respondents filed with the Court of Appeals their Petition for Review.

Petitioners assert that the Petition for Review was filed beyond the fifteen (15)-day period for appeal. They theorize that the period started running on 28 April 1995, the date of receipt of the RTC decision, and ended on 13 May 1997. According to them, this reglementary period could not have been interrupted by the filing on 9 May 1997 of the Motion for Reconsideration because of the filing one day earlier of the Notice of Appeal. This Notice of Appeal dated 8 May 1997, albeit the wrong mode of appeal, expressly manifested their intention to file a petition for review to either the Court of Appeals or the Supreme Court.4

Petitioners further argue that respondents, after having filed the Notice of Appeal which was given due course by the RTC, cannot take an inconsistent stand such as filing a Motion for Reconsideration. Such filing, therefore, did not toll the fifteen (15)-day period which started running from the date of receipt of the RTC decision on 28 April 1997 and ended on 13 May 1997.

Respondents, in their Comment,5 submit that the filing of the Notice of Appeal dated 8 May 1997 was improper, and as such did not produce any legal effect. Therefore, the filing of the Motion for Reconsideration immediately on the following day cured this defect. The RTC refused to subscribe respondents’ position. It justified the denial of the Motion for Reconsideration on the ground that the respondents had already filed a Notice of Appeal. TheOrder dated 23 June 1997 stated:

On record is a Notice of Appeal by Certiorari filed by Defendants on May 8, 1997.

Likewise filed by Defendants on May 9, 1997 is a Motion for Reconsideration.

Considering the Notice of Appeal filed earlier which the court hereby approves, the Motion for Reconsideration is DENIED.

The Motion for Immediate Execution Pending Appeal being meritorious, is GRANTED.6 (Emphasis in the original.)

Strangely enough, the Court of Appeals passed no comment on this point when it took cognizance of respondents’ position and reversed the RTC. But does this necessarily mean that the

RTC was correct when it declared that theMotion for Reconsideration was barred by the filing of the Notice of Appeal, no matter how erroneous the latter mode was?

Rule 42 governs the mode of appeal applicable in this case. Sec. 1 provides:

Section 1. How appeal taken; time for filing. -- A party desiring to appeal from a decision of the RTC rendered in the exercise of its appellate jurisdiction may file a verified petition for review with the Court of Appeals, paying at the same time to the clerk of said court the corresponding docket and other lawful fees, depositing the amount ofP500.00 for costs, and furnishing the Regional Trial Court and the adverse party with a copy of the petition. The petition shall be filed and served within fifteen (15) days from notice of the decision sought to be reviewed or of the denial of petitioner’s motion for new trial or reconsideration filed in due time after judgment. Upon proper motion and the payment of the full amount of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days only within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days.

Since the unlawful detainer case was filed with the MTC and affirmed by the RTC, petitioners should have filed aPetition for Review with the Court of Appeals and not a Notice of Appeal with the RTC. However, we consider this to have been remedied by the timely filing of the Motion for Reconsideration on the following day. Section 3, Rule 50 of the Rules of Court allows the withdrawal of appeal at any time, as a matter of right, before the filing of the appellee’s brief. Applying this rule contextually, the filing of the Motion for Reconsideration may be deemed as an effective withdrawal of the defective Notice of Appeal.

Perforce, the period of appeal was tolled by the Motion for Reconsideration and started to run again from the receipt of the order denying the Motion for Reconsideration. A Motion for Additional Time to File the Petition was likewise filed with the Court of Appeals. Counting fifteen (15) days from receipt of the denial of the Motion for Reconsideration and the ten (10)-day request for additional period, it is clear that respondents filed their Petition for Review on time.

Petitioners invoke to the ruling in People v. De la Cruz7 that once a notice of appeal is filed, it cannot be validly withdrawn to give way to a motion for reconsideration. The factual circumstances in the two cases are different.

De la Cruz is a criminal case, governed by criminal procedure. Section 3, Rule 122 of the Rules of Court provides that the proper mode of appeal from a decision of the RTC is a notice of appeal and an appeal is deemed perfected upon filing of the notice of appeal.

In the case at bar, a petition for review before the Court of Appeals is the proper mode of appeal from a decision of the

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RTC. Since the filing of the notice of appeal is erroneous, it is considered as if no appeal was interposed.

Now on the second and more important issue raised by petitioners: whether the Complaint satisfies the jurisdictional requirements for a case of unlawful detainer properly cognizable by the MTC.

The MTC considered itself as having jurisdiction over the ejectment complaint and disposed of the same in favor of petitioners. Said ruling was affirmed by the RTC. The Court of Appeals reversed the lower courts and found the complaint to be one not for unlawful detainer based on two (2) grounds, namely: that the allegations fail to show that petitioners were deprived of possession by force, intimidation, threat, strategy or stealth; and that there is no contract, express or implied, between the parties as would qualify the case as one of unlawful detainer.

We disagree with the Court of Appeals.

The complaint for unlawful detainer contained the following material allegations:

. . . .

3. That plaintiffs are the owners of Lot No. 2, which is covered by T.C.T. No. 36466 of the Register of Deeds of Mandaue City, Lot No. 1-A which is covered by T.C.T. No. 36467 of the Register of Deeds of Mandaue City and Lot No. 86-A which is covered by T.C.T. No. 36468 of the Register of Deeds of Mandaue City, all situated in the City of Mandaue. Copies of said Transfer Certificate of Titles are hereto attached as Annexes "A", "B", and "C" respectively and made an integral part hereof;

4. That defendant Elizabeth Ong is the previous registered owner of said lots;

5. That as the previous registered owner of said lots, defendant Elizabeth Ong and her husband and co-defendant Jerry Ong have been living in the house constructed on said lots;

6. That on May 6, 1995, plaintiffs, through the undersigned counsel, wrote defendants a letter informing them or their intent to use said lots and demanded of them to vacate said lots within 30 days from receipt of said letter. Copy of said letter is hereto attached as Annex "D" and made an integral part thereof;

7. That despite demand to vacate, the defendants have refused and still refuse to vacate said lots, thus, unlawfully withholding possession of said lots from plaintiffs and depriving plaintiffs of the use of their lots;

8. That in unlawfully withholding the possession of said lots from the plaintiffs, plaintiffs have suffered damages in the form of unearned rentals in the amount of P10,000.00 a month

. . . .8

Well-settled is the rule that what determines the nature of an action as well as which court has jurisdiction over it are the allegations of the complaint and the character of the relief sought.9

Respondents contend that the complaint did not allege that petitioners’ possession was originally lawful but had ceased to be so due to the expiration of the right to possess by virtue of any express or implied contract.

The emphasis placed by the Court of Appeals on the presence of a contract as a requisite to qualify the case as one of unlawful detainer contradicts the various jurisprudence dealing on the matter.

In Javelosa v. Court of the Appeals,10 it was held that the allegation in the complaint that there was unlawful withholding of possession is sufficient to make out a case for unlawful detainer. It is equally settled that in an action for unlawful detainer, an allegation that the defendant is unlawfully withholding possession from the plaintiff is deemed sufficient, without necessarily employing the terminology of the law.11

Hence, the phrase "unlawful withholding" has been held to imply possession on the part of defendant, which was legal in the beginning, having no other source than a contract, express or implied, and which later expired as a right and is being withheld by defendant.12 In Rosanna B. Barba v. Court of Appeals,13 we held that a simple allegation

that the defendant is unlawfully withholding possession from plaintiff is sufficient.

Based on this premise, the allegation in the Complaint that:

. . . . despite demand to vacate, the defendants have refused and still refuse to vacate said lots, thus, unlawfully withholding possession of said lots from plaintiffs and depriving plaintiffs of the use of their lots;14

is already sufficient to constitute an unlawful detainer case.

In the subject complaint, petitioners alleged that they are the registered owners of the lots covered by TCT Nos. 36466, 36467 and 36468. By their implied tolerance, they have allowed respondents, the former owners of the properties, to remain therein. Nonetheless, they eventually sent a letter to respondents asking that the latter vacate the said lots. Respondents refused, thereby depriving petitioners of possession of the lots. Clearly, the complaint establishes the basic elements of an unlawful detainer case, certainly sufficient for the purpose of vesting jurisdiction over it in the MTC.

Respondents would like to capitalize on the requisites as cited in the case of Raymundo dela Paz v. Panis.15 But the citation is a mere reiteration of Sec. 1, Rule 7016 of the Rules of Court.

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The case doesid not provide for rigid standards in the drafting of the ejectment complaint. The case of Co Tiamco v. Diaz17 justifies a more liberal approach, thus:

. . . The principle underlying the brevity and simplicity of pleadings in forcible entry and unlawful detainer cases rests upon considerations of public policy. Cases of forcible entry and detainer are summary in nature, for they involve perturbation of social order which must be restored as promptly as possible and, accordingly, technicalities or details of procedure should be carefully avoided.18

Moreover, petitioners fail to mention any of the incidents of the pending case involving the annulment of deed of sale and title over said property. Petitioners know better than to question this in an ejectment proceeding, which brings us to the nature of the action in this case.

Respondents insist that the RTC, and not the MTC, had jurisdiction over the action, it being an accion reivindicatoria according to them, on the ground that petitioners were constantly claiming ownership over the lands in the guise of filing an action for ejectment. In their Comment,19 respondents maintain that they occupy the subject lots as the legal owners. Petitioners, on the other hand, are seeking recovery of possession under a claim of ownership which is tantamount to recovery of possession based on alleged title to the lands, and therefore is within the original jurisdiction of the RTC, so respondents conclude.

This contention is not tenable.

The issue involved in accion reivindicatoria is the recovery of ownership of real property. This differs from accion publiciana where the issue is the better right of possession or possession de jure, and accion interdictal where the issue is material possession or possession de facto. In an action for unlawful detainer, the question of possession is primordial while the issue of ownership is generally unessential.20

Neither the allegation in petitioners’ complaint for ejectment nor the defenses thereto raised by respondents sufficiently convert this case into an accion reivindicatoria which is beyond the province of the MTC to decide. Petitioners did not institute the complaint for ejectment as a means of claiming or obtaining ownership of the properties. The acknowledgment in their pleadings of the fact of prior ownership by respondents does not constitute a recognition of respondents’ present ownership. This is meant only to establish one of the necessary elements for a case of unlawful detainer, specifically the unlawful withholding of possession. Petitioners, in all their pleadings, only sought to recover physical possession of the subject property. The mere fact that they claim ownership over the parcels of land as well did not deprive the MTC of jurisdiction to try the ejectment case.

Even if respondents claim ownership as a defense to the complaint for ejectment, the conclusion would be the same for mere assertion of ownership by the defendant in an ejectment

case will not therefore oust the municipal court of its summary jurisdiction.21 This Court in Ganadin

v. Ramos22 stated that if what is prayed for is ejectment or recovery of possession, it does not matter if ownership is claimed by either party. Therefore, the pending actions for declaration of nullity of deed of sale and Transfer Certificates of Title and quieting of title in Civil Case No. MAN-2356 will not abate the ejectment case.

In Drilon v. Gaurana,23 this Court ruled that the filing of an action for reconveyance of title over the same property or for annulment of the deed of sale over the land does not divest the MTC of its jurisdiction to try the forcible entry or unlawful detainer case before it, the rationale being that, while there may be identity of parties and subject matter in the forcible entry case and the suit for annulment of title and/or reconveyance, the rights asserted and the relief prayed for are not the same.24

In Oronce v. Court of Appeals,25 this Court held that the fact that respondents had previously filed a separate action for the reformation of a deed of absolute sale into one of pacto de retro sale or equitable mortgage in the same

Court of First Instance is not a valid reason to frustrate the summary remedy of ejectment afforded by law to the plaintiff. Consequently, an adjudication made in an ejectment proceeding regarding the issue of ownership should be regarded as merely provisional and, therefore, would not bar or prejudice an action between the same parties involving title to the land. The foregoing doctrine is a necessary consequence of the nature of forcible entry and unlawful detainer cases where the only issue to be settled is the physical or material possession over the real property, that is, possession de facto and not possession de jure.

The Court reiterated this in the case of Tecson v. Gutierrez26 when it ruled:

We must stress, however, that before us is only the initial determination of ownership over the lot in dispute, for the purpose of settling the issue of possession, although the issue of ownership is inseparably linked thereto. As such, the lower court's adjudication of ownership in the ejectment case is merely provisional, and our affirmance of the trial courts' decisions as well, would not bar or prejudice an action between the same parties involving title to the property, if and when such action is brought seasonably before the proper forum.

The long settled rule is that the issue of ownership cannot be subject of a collateral attack.

In Apostol v. Court of Appeals,27 this Court had the occasion to clarify this:

. . . Under Section 48 of Presidential Decree No. 1529, a certificate of title shall not be subject to collateral attack. It cannot be altered, modified or cancelled, except in a direct

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proceeding for that purpose in accordance with law. The issue of the validity of the title of the respondents can only be assailed in an action expressly instituted for that purpose. Whether or not the petitioners have the right to claim ownership over the property is beyond the power of the court a quo to determine in an action for unlawful detainer.28

With the conclusion of the second issue in favor of petitioners, there is no need to discuss the third assignment of error which is related to the second issue.

WHEREFORE, the Petition is GRANTED. The Decision of the Court of Appeals dated 6 January 1998 is REVERSED and SET ASIDE and the Decision dated 24

April 1996 of the Municipal Trial Court of Mandaue City REINSTATED and AFFIRMED. Costs against respondents.

SO ORDERED.

G.R. No. 165177 August 25, 2005

LILIA V. PERALTA-LABRADOR, Petitioners, vs.SILVERIO BUGARIN, substituted by his widow, CONSOLACION BUGARIN,1 Respondent.

DECISION

YNARES-SANTIAGO, J.:

Challenged in this petition for review on certiorari is the March 12, 2004 decision2 of the Court of Appeals in CA-G.R. SP No. 57475, which affirmed with modification the January 26, 2000 judgment3 of the Regional Trial Court (RTC) of Iba, Zambales, Branch 71, in Civil Case No. RTC-1590-I, which in turn affirmed the decision4 dated May 16, 1999 of the Municipal Trial Court (MTC) of San Felipe, Zambales, in Civil Case No. 328, and its September 6, 2004 resolution5 denying reconsideration thereof.

On January 18, 1996, petitioner Lilia V. Peralta-Labrador filed a case for "Recovery of Possession and Ownership," docketed as Civil Case No. 328, with the MTC of San Felipe, Zambales. She alleged that she is the owner of Cadastral Lot No. 2650, with an area of 400 sq. m. located at Sitio Caarosipan, Barangay Manglicmot, San Felipe, Zambales, having purchased the same in 1976 from spouses Artemio and Angela Pronto. In 1977, she was issued Tax Declaration No. 10462 and paid the taxes due thereon.6

In 1990, the Department of Public Works and Highways constructed a road which traversed Cadastral Lot No. 2650 thereby separating 108 sq. m. from the rest of petitioner’s lot, for which she was issued Tax Declaration No. 02-2460R in 1991.7

Sometime in 1994, respondent Silverio Bugarin forcibly took possession of the 108 sq. m. lot and refused to vacate the same despite the pleas of petitioner. Hence, on January 18, 1996, she instituted a complaint for recovery of possession and ownership against respondent.

In his Answer with Counterclaims,8 respondent contended that the area claimed by petitioner is included in the 4,473 square meter lot, covered by the Original Certificate of Title (OCT) No. P-13011; and that he has been in continuous possession and occupation thereof since 1955. In his Amended Answer with Counterclaim,9 however, respondent failed to allege that the questioned lot is covered by the OCT No. P-13011, and instead asserted that he planted fruit bearing trees in the property. Respondent further pleaded the defenses of lack of cause of action and prescription.

On May 16, 1999, the court a quo ruled in favor of respondent declaring him as the owner of the controverted lot on the basis of the OCT No. P-13011. The complaint was dismissed for failure of petitioner to prove prior physical possession and ownership thereof. The dispositive portion thereof, reads:

WHEREFORE, all the foregoing premises considered and for failure on the part of the plaintiff to establish the preponderance of evidence of prior actual physical possession and present title over the lot in her favor, let the instant case be ordered DISMISSED, and the defendant be awarded the rightful possession and ownership of the same and the plaintiff is hereby ordered to pay FIFTEEN THOUSAND (P15,000.00) PESOS as reasonable Attorney’s fee and FIVE THOUSAND (P5,000.00) PESOS as appearance fee plus costs.

SO ORDERED.10

The RTC affirmed the assailed decision,11 hence petitioner filed a petition for review before the Court of Appeals which was however denied for insufficiency of evidence to prove ownership or prior actual physical possession. The appellate court deleted the monetary awards in favor of respondent as well as the declaration of the MTC that respondent is the owner of the questioned lot on the ground that the OCT No. P-13011, relied upon by said court was not formally offered in evidence, hence, cannot be considered by the court. The decretal portion thereof, states:

WHEREFORE, in view of the foregoing discussion, the instant petition is hereby PARTIALLY GRANTED. The assailed Decision dated January 26, 2000, in Civil Case No. RTC 1590 I of the Regional Trial Court (RTC), Branch 71, Iba, Zambales, and Decision dated May 16, 1999, in Civil Case No. 328 of the Municipal Trial Court of San Felipe, Zambales are MODIFIED by deleting the declaration of ownership as to the disputed 108 square meters and the monetary award in favor of respondent Silverio Bugarin. However, the dismissal of the complaint is AFFIRMED.

SO ORDERED.12

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The motion for reconsideration filed by petitioner was denied. Hence the instant petition.

Pertinent portion of Section 1, Rule 70 of the Revised Rules of Civil Procedure, provides:

SECTION 1. Who may institute proceedings, and when. – … a person deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, … may at any time within one (1) year after such unlawful deprivation or withholding of possession, bring an action in the proper Municipal Trial Court against the person or persons unlawfully withholding or depriving of possession, or any person or persons claiming under them, for the restitution of such possession, together with the damages and costs. (Emphasis supplied)

In Lopez v. David Jr.,13 it was held that an action for forcible entry is a quieting process and the one year time bar for filing a suit is in pursuance of the summary nature of the action. Thus, we have nullified proceedings in the MTCs when it improperly assumed jurisdiction of a case in which the unlawful deprivation or withholding of possession had exceeded one year. After the lapse of the one year period, the suit must be commenced in the RTC via an accion publiciana, a suit for recovery of the right to possess. It is an ordinary civil proceeding to determine the better right of possession of realty independently of title. It also refers to an ejectment suit filed after the expiration of one year from the accrual of the cause of action or from the unlawful withholding of possession of the realty independently of title. Likewise, the case may be instituted before the same court as an accion reivindicatoria, which is an action to recover ownership as well as possession.14

Corrollarily, jurisdiction of a court is determined by the allegations of the complaint. Thus, in ascertaining whether or not the action falls within the exclusive jurisdiction of the inferior courts, the averments of the complaint and the character of the relief sought are to be examined.15

In the instant case, petitioner’s complaint alleges that:

2. That plaintiff is the owner of a parcel of land denominated as Cadastral lot No. 2650, San Felipe Cadastre, situated at sitio Caarosipan, Barangay Manglicmot, San Felipe, Zambales which she bought in 1976 from Spouses Artemio Pronto and Angela Merano when she was still a widow, with the following boundaries: North, Alipio Abad, East, Antonio Cueva, South, Juan Borja, and West, Old Provincial Road, containing an area of 108 square meters, declared under Tax Declaration No. 002-1860R and assessed at P1,120.00;

3. That plaintiff has been in open, continuous, exclusive and adverse as well as notorious possession of the said lot and in the concept of an owner since she [acquired] it in 1976 until the time when defendant took possession forcibly, two years ago;

4. That in or before 1990 the land was traversed by a new National Highway and the land was segregated from a bigger portion of the land, the western portion is now the land in question and since the new provincial road which traversed the whole land of the plaintiff, the old highway which is west of Lot 2650 shall belong to the plaintiff in compensation of the portion of her lot traversed by the new highway, said old highway is also taken by defendant unlawfully;16

It is clear that petitioner’s averment make out a case for forcible entry because she alleged prior physical possession of the subject lot way back in 1976, and the forcible entry thereon by respondent. Considering her allegation that the unlawful possession of respondent occurred two years17 prior to the filing of the complaint on January 18, 1996, the cause of action for forcible entry has prescribed and the MTC had no jurisdiction to entertain the case. Petitioner’s complaint therefore should have been filed with the proper RTC.

It is settled that jurisdiction over the subject matter cannot be waived by the parties or cured by their silence, acquiescence or even express consent.18 Hence, the failure of respondent to insist on the defenses of lack of cause of action and prescription stated in his Amended Answer with Counterclaim will not vest the MTC with jurisdiction over the case.

On this point, the Court held in Bongato v. Malvar19 that:

It is wise to be reminded that forcible entry is a quieting process, and that the restrictive time bar is prescribed to complement the summary nature of such process. Indeed, 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 plaintiff learned about it. After the lapse of the one-year period, the party dispossessed of a parcel of land may file either an accion publiciana, which is a plenary action to recover the right of possession; or an accion reivindicatoria, which is an action to recover ownership as well as possession.

On the basis of the foregoing facts, it is clear that the cause of action for forcible entry filed by respondents had already prescribed when they filed the Complaint for ejectment on July 10, 1992. Hence, even if Severo Malvar may be the owner of the land, possession thereof cannot be wrested through a summary action for ejectment of petitioner, who had been occupying it for more than one (1) year. Respondents should have presented their suit before the RTC in an accion publiciana or an accion reivindicatoria, not before the MTCC in summary proceedings for forcible entry. Their cause of action for forcible entry had prescribed already, and the MTCC had no more jurisdiction to hear and decide it.

...

Further, a court’s lack of jurisdiction over the subject matter cannot be waived by the parties or cured by their silence, acquiescence or even express consent. A party may assail the jurisdiction of the court over the action at any stage of the

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proceedings and even on appeal. That the MTCC can take cognizance of a motion to dismiss on the ground of lack of jurisdiction, even if an answer has been belatedly filed we likewise held in Bayog v. Natino[.]

Moreover, even if the MTC has jurisdiction over the subject matter, the complaint should still be dismissed because petitioner failed to prove that the controverted 108 sq. m. lot is part of Cadastral Lot No. 2650. Petitioner admitted that she has never seen the Cadastral Map of San Felipe, Zambales, and relied only on the Survey Notification Card20 from the Bureau of Lands,21 with a sketch of Cadastral Lot No. 2650. Said card, however, does not reflect the 108 sq. m. lot subject of this case. Neither did petitioner cause the survey of Cadastral Lot No. 2650 after the construction of a new road to prove that the segregated portion on the western side is part thereof. Ei incumbit probotio qui dicit, non qui negat. He who asserts, not he who denies, must prove.22 Failing to discharge this burden, the dismissal of the complaint is proper.

In the same vein, ownership of the lot in question cannot be awarded to respondent considering that OCT No. P-13011,23 and the Survey Plan24 were not formally offered in evidence. While the issue of ownership may be passed upon in ejectment cases for the sole purpose of determining the nature of possession,25 no evidence conclusively show that the lot in question is covered by said OCT No. P-13011 or any other title of respondent.

WHEREFORE, the May 16, 1999 decision of the Municipal Trial Court of San Felipe, Zambales, the January 26, 2000 decision of the Regional Trial Court, Branch 71, Iba, Zambales, and the March 12, 2004 decision of the Court of Appeals, are ANNULLED and SET ASIDE for lack of jurisdiction. The complaint in Civil Case No. 328 isDISMISSED.

SO ORDERED.

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