Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 72876 January 18, 1991
FLORENCIO IGNAO, petitioner,
vs.
ON. INTERME!IATE APPELLATE COURT, JUAN IGNAO, "u#"$%$u$&' #y (%"
L&)a* &%r", an' ISI!RO IGNAO, respondents.
Dolorfino and Dominguez Law Offices for petitioner.
Ambrosio Padilla, Mempin & Reyes Law Offices for priate respondents.

FERNAN, C.J.:p
In this petition for revie b! certiorari, petitioner see"s the reversal of the decision of
the Inter#ediate $ppellate %ourt &no %ourt of $ppeals' affir#in( in toto the decision
of the %ourt of )irst Instance of %avite, orderin( petitioner )lorencio I(nao to sell to
private respondents *uan and Isidro I(nao, that part of his propert! here private
respondents had built a portion of their houses.
The antecedent facts are as follos+
Petitioner )lorencio I(nao and his uncles private respondents *uan I(nao and Isidro
I(nao ere co,oners of a parcel of land ith an area of -./ s0uare #eters situated in
1arrio Tabon, Municipalit! of 2ait, %avite. Pursuant to an action for partition filed b!
petitioner doc"eted as %ivil %ase No. N,3453, the then %ourt of )irst Instance of %avite
in a decision dated )ebruar! 4, 367- directed the partition of the aforesaid land,
allotin( 3...- s0uare #eters or 895 thereof to private respondents *uan and Isidro, and
(ivin( the re#ainin( portion ith a total area of 844.- s0uare #eters to petitioner
)lorencio. Hoever, no actual partition as ever effected.
1
On *ul! 37, 3675, petitioner instituted a co#plaint for recover! of possession of real
propert! a(ainst private respondents *uan and Isidro before the %ourt of )irst Instance
of %avite, doc"eted as %ivil %ase No. 8448. In his co#plaint petitioner alle(ed that the
area occupied b! the to &8' houses built b! private respondents e:ceeded the 3...-
s0uare #eters previousl! alloted to the# b! the trial court in %ivil %ase No. N,3453.
%onse0uentl!, the loer court conducted an ocular inspection. It as found that the
houses of *uan and Isidro actuall! encroached upon a portion of the land belon(in( to
)lorencio. ;pon a(ree#ent of the parties, the trial court ordered a licensed (eodetic
en(ineer to conduct a surve! to deter#ine the e:act area occupied b! the houses of
private respondents. The surve! subse0uentl! disclosed that the house of *uan
occupied /8 s0uare #eters hile that of Isidro occupied -6 s0uare #eters of
)lorencio<s land or a total of 3=3 s0uare #eters.
In its decision, the trial court &thru *ud(e >uis >. Victor' ruled that althou(h private
respondents occupied a portion of )lorencio<s propert!, the! should be considered
builders in (ood faith. The trial court too" into account the decision of the %ourt of )irst
Instance of %avite in the action for partition
2
and 0uoted+
. . . . Hence, it is the ell,considered opinion of the %ourt that
althou(h it turned out that the defendants had, before partition, been
in possession of #ore than hat ri(htfull! belon(s to the#,t!eir
possession of w!at is in e"cess of t!eir rig!tful s!are can at worst
be possession in good fait! w!ic! e"empts t!em from being
condemned to pay damages by reason t!ereof.
+
)urther#ore, the trial court stated that pursuant to $rticle //5 of the %ivil %ode, the
oner of the land &)lorencio' should have the choice to either appropriate that part of
the house standin( on his land after pa!#ent of inde#nit! or obli(e the builders in
(ood faith &*uan and Isidro' to pa! the price of the land. Hoever, the trial court
observed that based on the facts of the case, it ould be useless and unsuitable for
)lorencio to e:ercise the first option since this ould render the entire houses of *uan
and Isidro orthless. The trial court then applied the rulin( in the si#ilar case of #rana
s. $ourt of Appeals,
,
here the Supre#e %ourt had advanced a #ore ?or"able
solution?. Thus, it ordered )lorencio to sell to *uan and Isidro those portions of his land
respectivel! occupied b! the latter. The dispositive portion of said decision reads as
follos+
@HARA)ORA, Bud(#ent is hereb! rendered in favor of the
defendants andC
&a' Orderin( the plaintiff )lorencio I(nao to sell to the defendants
*uan and Isidro I(nao that portion of his propert! ith an area of 3=3
s0uare #eters at P/=.== per s0uare #eter, on hich part the
defendants had built their housesD and
&b' Orderin( the said plaintiff to e:ecute the necessar! deed of
conve!ance to the defendants in accordance ith para(raph &a'
hereof.
@ithout pronounce#ent as to costs.
-
1
Petitioner )lorencio I(nao appealed to the Inter#ediate $ppellate %ourt. On $u(ust 87,
365-, the $ppellate %ourt, Second %ivil %ases Division, pro#ul(ated a
decision,
6
affir#in( the decision of the trial court.
Hence the instant petition for revie hich attributes to the $ppellate %ourt the
folloin( errors+
3. That the respondent %ourt has considered private respondents
builders in (ood faith on the land on 0uestion, thus appl!in( $rt. //5
of the %ivil %ode, althou(h the land in 0uestion is still oned b! the
parties in co,onership, hence, the applicable provision is $rt. /54 of
the %ivil %ode, hich as not applied.
8. That, (rantin( for the sa"e of ar(u#ent that $rt. //5 . . . is
applicable, the respondent %ourt has adBud(ed the or"in( solution
su((ested in Erana and Torralba vs. %$. &3=6 Phil. 84=', hich is
Bust an opinion b! a! of passin(, and not the Bud(#ent rendered
therein, hich is in accordance ith the said provision of the %ivil
%ode, herein the oner of the land to bu! &sic' the portion of the
buildin( ithin .= da!s fro# the Bud(#ent or sell the land occupied
b! the buildin(.
.. That, (rantin( that private respondents could bu! the portion of
the land occupied b! their houses, the price fi:ed b! the court is
unrealistic and pre,ar price.
7
The records of the case reveal that the disputed land ith an area of -./ s0uare
#eters as ori(inall! oned b! 1altaFar I(nao ho #arried tice. In his first #arria(e,
he had four children, na#el! *usto &the father of petitioner )lorencio', >eon and private
respondents *uan and Isidro. In his second #arria(e, 1altaFar had also four children
but the latter aived their ri(hts over the controverted land in favor of *usto. Thus,
*usto oned /95 of the land hich as aived b! his half,brothers and sisters plus his
395 share or a total of -95. Thereafter, *usto ac0uired the 395 share of >eon for P-==.==
hich he later sold to his son )lorencio for the sa#e a#ount. @hen *usto died,
)lorencio inherited the -95 share of his father *usto plus his 395 share of the land hich
he bou(ht or a total of 495 &representin( /==.- s0uare #eters'. Private respondents,
*uan and Isidro, on the other hand, had 395 share &44.7- s0uare #eters' each of the
land or a total of 3...- s0uare #eters.
1efore the decision in the partition case as pro#ul(ated, )lorencio sold 3./ s0uare
#eters of his share to a certain Victa for P-,===.== on *anuar! 87, 367-. @hen the
decision as handed don on )ebruar! 4,367-, the loer court alloted 895 of the land
to private respondents *uan and Isidro, or a total of 3...- s0uare #eters.
It should be noted that prior to partition, all the co,oners hold the propert! in co##on
do#inion but at the sa#e ti#e each is an oner of a share hich is abstract and
undeter#ined until partition is effected. $s cited in %usebio s. &ntermediate Appellate
$ourt,
8
?an undivided estate is co,onership b! the heirs.?
$s co,oners, the parties #a! have une0ual shares in the co##on propert!,
0uantitativel! spea"in(. 1ut in a 0ualitative sense, each co,oner has the sa#e ri(ht
as an! one of the other co,oners. Aver! co,oner is therefore the oner of the
hole, and over the hole he e:ercises the ri(ht of do#inion, but he is at the sa#e
ti#e the oner of a portion hich is trul! abstract, because until division is effected
such portion is not concretel! deter#ined.
9
Petitioner )lorencio, in his first assi(n#ent of error, asseverates that the court a
'uo erred in appl!in( $rticle //5 of the %ivil %ode, since this article conte#plates a
situation herein the land belon(s to one person and the thin( built, son or planted
belon(s to another. In the instant case, the land in dispute used to be oned in
co##on b! the contendin( parties.
$rticle //5 provides+
$rt. //5. The oner of the land on hich an!thin( has been built,
son or planted in (ood faith, shall have the ri(ht to appropriate as
his on the or"s, soin( or plantin(, after pa!#ent of the
inde#nit! provided for in articles -/4 and -/5, or to obli(e the one
ho built or planted to pa! the price of the land, and the one ho
soed, the proper rent. Hoever, the builder or planter cannot be
obli(ed to bu! the land if its value is considerabl! #ore than that of
the buildin( or trees. In such case, he shall pa! reasonable rent, if
the oner of the land does not choose to appropriate the buildin( or
trees after proper inde#nit!. The parties shall a(ree upon the ter#s
of the lease and in case of disa(ree#ent, the court shall fi: the
ter#s thereof.
@hether or not the provisions of $rticle //5 should appl! to a builder in (ood faith on a
propert! held in co##on has been resolved in the affir#ative in the case of (pouses
del $ampo s. Abesia,
1.
herein the %ourt ruled that+
The court a 'uo correctl! held that $rticle //5 of the %ivil %ode
cannot appl! here a co,oner builds, plants or sos on the land
oned in co##on for then he did not build, plant or so upon land
that e:clusivel! belon(s to another but of hich he is a co,oner.
The co,oner is not a third person under the circu#stances, and the
situation is (overned b! the rules of co,onership.
)oweer, w!en, as in t!is case, t!e owners!ip is terminated by t!e
partition and it appears t!at t!e !ome of defendants oerlaps or
occupies a portion of * s'uare meters of t!e land pertaining to
plaintiffs w!ic! t!e defendants obiously built in good fait!, t!en t!e
proisions of Article ++, of t!e new $iil $ode s!ould apply.
2
Manresa and Navarro $#andi a(ree that the said provision of the
%ivil %ode #a! appl! even hen there is a co,onership if (ood
faith has been established.
11
In other ords, hen the co,onership is ter#inated b! a partition and it appears that
the house of an ersthile co,oner has encroached upon a portion pertainin( to
another co,oner hich as hoever #ade in (ood faith, then the provisions of $rticle
//5 should appl! to deter#ine the respective ri(hts of the parties.
Petitioner<s second assi(ned error is hoever ell ta"en. 1oth the trial court and the
$ppellate %ourt erred hen the! pere#ptoril! adopted the ?or"able solution? in the
case of #rana s. $ourt of appeals,
12
and ordered the oner of the land, petitioner
)lorencio, to sell to private respondents, *uan and Isidro, the part of the land the!
intruded upon, thereb! deprivin( petitioner of his ri(ht to choose. Such rulin(
contravened the e:plicit provisions of $rticle //5 to the effect that ?&t'he oner of the
land . . . shall have the ri(ht to appropriate . . .or to obli(e the one ho built . . . to pa!
the price of the land . . . .? The la is clear and una#bi(uous hen it confers the ri(ht
of choice upon the landoner and not upon the builder and the courts.
Thus, in -uemuel s. Olaes,
1+
the %ourt cate(oricall! ruled that the ri(ht to
appropriate the or"s or i#prove#ents or to obli(e the builder to pa! the price of the
land belon(s to the landoner.
$s to the third assi(n#ent of error, the 0uestion on the price to be paid on the land
need not be discussed as this ould be pre#ature inas#uch as petitioner )lorencio
has !et to e:ercise his option as the oner of the land.
@HARA)ORA, the decision appealed fro# is hereb! MODI)IAD as follos+ Petitioner
)lorencio I(nao is directed ithin thirt! &.=' da!s fro# entr! of Bud(#ent to e:ercise his
option to either appropriate as his on the portions of the houses of *uan and Isidro
I(nao occup!in( his land upon pa!#ent of inde#nit! in accordance ith $rticles -/4
and -/5 of the %ivil %ode, or sell to private respondents the 3=3 s0uare #eters
occupied b! the# at such price as #a! be a(reed upon. Should the value of the land
e:ceed the value of the portions of the houses that private respondents have erected
thereon, private respondents #a! choose not to bu! the land but the! #ust pa!
reasonable rent for the use of the portion of petitioner<s land as #a! be a(reed upon
b! the parties. In case of disa(ree#ent, the rate of rental and other ter#s of the lease
shall be deter#ined b! the trial court. Otherise, private respondents #a! re#ove or
de#olish at their on e:pense the said portions of their houses encroachin( upon
petitioner<s land.
1,
No costs.
SO ORDARAD.
3