Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-50008 August 31, 1987
PRUDENTIAL BANK, petitioner,
vs.
HONORABLE DOMINGO D. PANIS, Presiding Judge of Branch III, Court of
First Instance of Zambales and Olongapo City; FERNANDO MAGCALE &
TEODULA BALUYUT-MAGCALE, respondents.
PARAS, J.:

A first class residential land Identffied as Lot No. 720, (Ts-308, Olongapo Townsite
Subdivision) Ardoin Street, East Bajac-Bajac, Olongapo City, containing an area of
465 sq. m. more or less, declared and assessed in the name of FERNANDO
MAGCALE under Tax Duration No. 19595 issued by the Assessor of Olongapo
City with an assessed value of P1,860.00; bounded on the
NORTH: By No. 6, Ardoin Street
SOUTH: By No. 2, Ardoin Street
EAST: By 37 Canda Street, and
WEST: By Ardoin Street.

This is a petition for review on certiorari of the November 13, 1978 Decision * of the
then Court of First Instance of Zambales and Olongapo City in Civil Case No. 24430 entitled "Spouses Fernando A. Magcale and Teodula Baluyut-Magcale vs. Hon.
Ramon Y. Pardo and Prudential Bank" declaring that the deeds of real estate
mortgage executed by respondent spouses in favor of petitioner bank are null and
void.
The undisputed facts of this case by stipulation of the parties are as follows:
... on November 19, 1971, plaintiffs-spouses Fernando A. Magcale
and Teodula Baluyut Magcale secured a loan in the sum of
P70,000.00 from the defendant Prudential Bank. To secure
payment of this loan, plaintiffs executed in favor of defendant on
the aforesaid date a deed of Real Estate Mortgage over the
following described properties:
l. A 2-STOREY, SEMI-CONCRETE, residential building with
warehouse spaces containing a total floor area of 263 sq. meters,
more or less, generally constructed of mixed hard wood and
concrete materials, under a roofing of cor. g. i. sheets; declared and
assessed in the name of FERNANDO MAGCALE under Tax
Declaration No. 21109, issued by the Assessor of Olongapo City
with an assessed value of P35,290.00. This building is the only
improvement of the lot.
2. THE PROPERTY hereby conveyed by way of MORTGAGE
includes the right of occupancy on the lot where the above
property is erected, and more particularly described and bounded,
as follows:

All corners of the lot marked by conc. cylindrical monuments of the Bureau of Lands
as visible limits. ( Exhibit "A, " also Exhibit "1" for defendant).
Apart from the stipulations in the printed portion of the aforestated deed of
mortgage, there appears a rider typed at the bottom of the reverse side of the
document under the lists of the properties mortgaged which reads, as follows:
AND IT IS FURTHER AGREED that in the event the Sales Patent on the lot applied
for by the Mortgagors as herein stated is released or issued by the Bureau of Lands,
the Mortgagors hereby authorize the Register of Deeds to hold the Registration of
same until this Mortgage is cancelled, or to annotate this encumbrance on the Title
upon authority from the Secretary of Agriculture and Natural Resources, which title
with annotation, shall be released in favor of the herein Mortgage.
From the aforequoted stipulation, it is obvious that the mortgagee (defendant
Prudential Bank) was at the outset aware of the fact that the mortgagors (plaintiffs)
have already filed a Miscellaneous Sales Application over the lot, possessory rights
over which, were mortgaged to it.
Exhibit "A" (Real Estate Mortgage) was registered under the Provisions of Act 3344
with the Registry of Deeds of Zambales on November 23, 1971.
On May 2, 1973, plaintiffs secured an additional loan from defendant Prudential
Bank in the sum of P20,000.00. To secure payment of this additional loan, plaintiffs
executed in favor of the said defendant another deed of Real Estate Mortgage over
the same properties previously mortgaged in Exhibit "A." (Exhibit "B;" also Exhibit
"2" for defendant). This second deed of Real Estate Mortgage was likewise
registered with the Registry of Deeds, this time in Olongapo City, on May 2,1973.

On April 24, 1973, the Secretary of Agriculture issued Miscellaneous Sales Patent
No. 4776 over the parcel of land, possessory rights over which were mortgaged to
defendant Prudential Bank, in favor of plaintiffs. On the basis of the aforesaid Patent,
and upon its transcription in the Registration Book of the Province of Zambales,
Original Certificate of Title No. P-2554 was issued in the name of Plaintiff Fernando
Magcale, by the Ex-Oficio Register of Deeds of Zambales, on May 15, 1972.

2. WHETHER OR NOT THE SUPERVENING ISSUANCE IN FAVOR OF

PRIVATE RESPONDENTS OF MISCELLANEOUS SALES PATENT NO. 4776
ON APRIL 24, 1972 UNDER ACT NO. 730 AND THE COVERING ORIGINAL
CERTIFICATE OF TITLE NO. P-2554 ON MAY 15,1972 HAVE THE EFFECT OF
INVALIDATING THE DEEDS OF REAL ESTATE MORTGAGE. (Memorandum
for Petitioner, Rollo, p. 122).

For failure of plaintiffs to pay their obligation to defendant Bank after it became due,
and upon application of said defendant, the deeds of Real Estate Mortgage (Exhibits
"A" and "B") were extrajudicially foreclosed. Consequent to the foreclosure was the
sale of the properties therein mortgaged to defendant as the highest bidder in a public
auction sale conducted by the defendant City Sheriff on April 12, 1978 (Exhibit "E").
The auction sale aforesaid was held despite written request from plaintiffs through
counsel dated March 29, 1978, for the defendant City Sheriff to desist from going
with the scheduled public auction sale (Exhibit "D")." (Decision, Civil Case No.
2443-0, Rollo, pp. 29-31).

This petition is impressed with merit.

Respondent Court, in a Decision dated November 3, 1978 declared the deeds of Real
Estate Mortgage as null and void (Ibid., p. 35).
On December 14, 1978, petitioner filed a Motion for Reconsideration (Ibid., pp. 4153), opposed by private respondents on January 5, 1979 (Ibid., pp. 54-62), and in an
Order dated January 10, 1979 (Ibid., p. 63), the Motion for Reconsideration was
denied for lack of merit. Hence, the instant petition (Ibid., pp. 5-28).
The first Division of this Court, in a Resolution dated March 9, 1979, resolved to
require the respondents to comment (Ibid., p. 65), which order was complied with the
Resolution dated May 18,1979, (Ibid., p. 100), petitioner filed its Reply on June
2,1979 (Ibid., pp. 101-112).
Thereafter, in the Resolution dated June 13, 1979, the petition was given due course
and the parties were required to submit simultaneously their respective memoranda.
(Ibid., p. 114).
On July 18, 1979, petitioner filed its Memorandum (Ibid., pp. 116-144), while
private respondents filed their Memorandum on August 1, 1979 (Ibid., pp. 146-155).
In a Resolution dated August 10, 1979, this case was considered submitted for
decision (Ibid., P. 158).
In its Memorandum, petitioner raised the following issues:
1. WHETHER OR NOT THE DEEDS OF REAL ESTATE MORTGAGE ARE
VALID; AND

The pivotal issue in this case is whether or not a valid real estate mortgage can be
constituted on the building erected on the land belonging to another.
The answer is in the affirmative.
In the enumeration of properties under Article 415 of the Civil Code of the
Philippines, this Court ruled that, "it is obvious that the inclusion of "building"
separate and distinct from the land, in said provision of law can only mean that a
building is by itself an immovable property." (Lopez vs. Orosa, Jr., et al., L-1081718, Feb. 28, 1958; Associated Inc. and Surety Co., Inc. vs. Iya, et al., L-10837-38,
May 30,1958).
Thus, while it is true that a mortgage of land necessarily includes, in the absence of
stipulation of the improvements thereon, buildings, still a building by itself may be
mortgaged apart from the land on which it has been built. Such a mortgage would be
still a real estate mortgage for the building would still be considered immovable
property even if dealt with separately and apart from the land (Leung Yee vs. Strong
Machinery Co., 37 Phil. 644). In the same manner, this Court has also established
that possessory rights over said properties before title is vested on the grantee, may
be validly transferred or conveyed as in a deed of mortgage (Vda. de Bautista vs.
Marcos, 3 SCRA 438 [1961]).
Coming back to the case at bar, the records show, as aforestated that the original
mortgage deed on the 2-storey semi-concrete residential building with warehouse
and on the right of occupancy on the lot where the building was erected, was
executed on November 19, 1971 and registered under the provisions of Act 3344
with the Register of Deeds of Zambales on November 23, 1971. Miscellaneous Sales
Patent No. 4776 on the land was issued on April 24, 1972, on the basis of which
OCT No. 2554 was issued in the name of private respondent Fernando Magcale on
May 15, 1972. It is therefore without question that the original mortgage was
executed before the issuance of the final patent and before the government was
divested of its title to the land, an event which takes effect only on the issuance of the
sales patent and its subsequent registration in the Office of the Register of Deeds
(Visayan Realty Inc. vs. Meer, 96 Phil. 515; Director of Lands vs. De Leon, 110 Phil.
28; Director of Lands vs. Jurado, L-14702, May 23, 1961; Pena "Law on Natural
Resources", p. 49). Under the foregoing considerations, it is evident that the

mortgage executed by private respondent on his own building which was erected on
the land belonging to the government is to all intents and purposes a valid mortgage.
As to restrictions expressly mentioned on the face of respondents' OCT No. P-2554,
it will be noted that Sections 121, 122 and 124 of the Public Land Act, refer to land
already acquired under the Public Land Act, or any improvement thereon and
therefore have no application to the assailed mortgage in the case at bar which was
executed before such eventuality. Likewise, Section 2 of Republic Act No. 730, also
a restriction appearing on the face of private respondent's title has likewise no
application in the instant case, despite its reference to encumbrance or alienation
before the patent is issued because it refers specifically to encumbrance or alienation
on the land itself and does not mention anything regarding the improvements
existing thereon.
But it is a different matter, as regards the second mortgage executed over the same
properties on May 2, 1973 for an additional loan of P20,000.00 which was registered
with the Registry of Deeds of Olongapo City on the same date. Relative thereto, it is
evident that such mortgage executed after the issuance of the sales patent and of the
Original Certificate of Title, falls squarely under the prohibitions stated in Sections
121, 122 and 124 of the Public Land Act and Section 2 of Republic Act 730, and is
therefore null and void.
Petitioner points out that private respondents, after physically possessing the title for
five years, voluntarily surrendered the same to the bank in 1977 in order that the
mortgaged may be annotated, without requiring the bank to get the prior approval of
the Ministry of Natural Resources beforehand, thereby implicitly authorizing
Prudential Bank to cause the annotation of said mortgage on their title.
However, the Court, in recently ruling on violations of Section 124 which refers to
Sections 118, 120, 122 and 123 of Commonwealth Act 141, has held:
... Nonetheless, we apply our earlier rulings because we believe
that as in pari delicto may not be invoked to defeat the policy of
the State neither may the doctrine of estoppel give a validating
effect to a void contract. Indeed, it is generally considered that as
between parties to a contract, validity cannot be given to it by
estoppel if it is prohibited by law or is against public policy (19
Am. Jur. 802). It is not within the competence of any citizen to
barter away what public policy by law was to preserve (Gonzalo
Puyat & Sons, Inc. vs. De los Amas and Alino supra). ... (Arsenal
vs. IAC, 143 SCRA 54 [1986]).
This pronouncement covers only the previous transaction already alluded to and does
not pass upon any new contract between the parties (Ibid), as in the case at bar. It
should not preclude new contracts that may be entered into between petitioner bank

and private respondents that are in accordance with the requirements of the law.
After all, private respondents themselves declare that they are not denying the
legitimacy of their debts and appear to be open to new negotiations under the law
(Comment; Rollo, pp. 95-96). Any new transaction, however, would be subject to
whatever steps the Government may take for the reversion of the land in its favor.
PREMISES CONSIDERED, the decision of the Court of First Instance of Zambales
& Olongapo City is hereby MODIFIED, declaring that the Deed of Real Estate
Mortgage for P70,000.00 is valid but ruling that the Deed of Real Estate Mortgage
for an additional loan of P20,000.00 is null and void, without prejudice to any
appropriate action the Government may take against private respondents.
SO ORDERED.
Teehankee, C.J., Narvasa, Cruz and Gancayco, JJ., concur.

Footnotes
* Penned by Judge Domingo D. Panis.

Leung Yee v. Strong Machinery Company

37 Phil. 644
Facts:
The Compaia Agricola Filipina bought a considerable quantity of rice-cleaning
machinery company from the defendant machinery company, and executed a
chattel mortgage thereon to secure payment of the purchaseprice. It included in
the mortgage deed the building of strong materials in which the machinery was
installed, without any reference to the land on which it stood. The indebtedness
secured by this instrument not having been paid when it fell due, the mortgaged
property was sold by the sheriff, in pursuance of the terms of
the mortgage instrument. A few weeks thereafter, on or about the 14th of January,
1914, the Compaia Agricola Filipina executed a deed of sale of the land upon
which the building stood to the machinery company, but this deed of sale, although
executed in a publicdocument, was not registered. The machinery company went into
possession of the building at or about the time when this sale took place, that is to
say, the month of December, 1913, and it has continued in possession ever since. At
or about the time when the chattel mortgage was executed in favor of the machinery
company, the mortgagor, the Compaia Agricola Filipina executed
another mortgage to the plaintiff upon the building, separate and apart from the land
on which it stood. Upon the failure of the mortgagor to pay the amount of the
indebtedness secured by the mortgage, the plaintiff secured judgment for that
amount, levied execution upon the building, bought it in at the sheriffs sale on or

about the 18th of December, 1914.This action was instituted by the plaintiff to
recover possession of the building from the machinery company. The trial judge gave
judgment in favor of the machinery company. Hence, this appeal.
Issue:
Whether or not the trial judge erred in sustaining the machinery company on the
ground that it had its title to the building registered prior to the date ofregistry of
plaintiffs certificate.
Held:
We conclude that the ruling in favor of the machinery company cannot be sustained
on the ground assigned by the trial judge. We are of opinion, however, that the
judgment must be sustained on the ground that the agreed statement of facts in the
court below discloses that neither the purchase of the building by the plaintiff nor his
inscription of the sheriffs certificate of sale in his favor was made in good faith, and
that the machinery company must be held to be the owner of the property Article
1544 of the New Civil Code, it appearing that the company first took possession of
the property; and further, that the building and the land were sold to the machinery
company long prior to the date of the sheriffs sale to the plaintiff. But it appearing
that he had full knowledge of the machinery companys claim of ownership when he
executed the indemnity bond and bought in the property at the sheriffs sale, and it
appearing further that the machinery companys claim of ownership was well
founded, he cannot be said to have been an innocent purchaser for value. He took the
risk and must stand by the consequences; and it is in this sense that we find that he
was not a purchaser in good faith.
The decision of the trial court is hereby affirmed.
Davao Sawmill Co. v. Castillo
61 Phil. 709
Facts:
The Davao Saw Mill Co., Inc., is the holder of a lumber concession from the
Government of the Philippine Islands. It has operated a sawmill in the sitio of Maa,
barrio of Tigatu, municipality of Davao, Province of Davao. However, the land upon
which the business was conducted belonged to another person. On the land the
sawmill company erected a building which housed the machinery used by it. Some
of the implements thus used were clearly personal property, the conflict concerning
machines which were placed and mounted on foundations of cement. In the contract
of lease between the sawmill company and the owner of the land there appeared the
following provision:
That on the expiration of the period agreed upon, all the improvements
andbuildings introduced and erected by the party of the second part shall pass to the
exclusive ownership of the party of the first part without any obligation on its part to
pay any amount for said improvements and buildings; also, in the event the party of
the second part should leave or abandon the land leased before the time herein
stipulated, the improvements and buildings shall likewise pass to the ownership of
the party of the first part as though the time agreed upon had expired: Provided,
however, That the machineries andaccessories are not included in the improvements
which will pass to the party of the first part on the expiration or abandonment of the
land leased.

The trial judge found that those properties were personal in nature and as a
consequence absolved the defendants from the complaint.
Issue:
Whether or not the trial judge erred in finding that the subject properties are personal
in nature.
Held:
As connecting up with the facts, it should further be explained that the Davao Saw
Mill Co., Inc., has on a number of occasions treated the machinery as personal
property by executing chattel mortgages in favor of third persons. One of such
persons is the appellee by assignment from the originalmortgages.
Article 334, paragraphs 1 and 5, of the Civil Code, is in point. According to the
Code, real property consists of
1. Land, buildings, roads and constructions of all kinds adhering to the soil;
5. Machinery, liquid containers, instruments or implements intended by the owner of
any building or land for use in connection with any industry or trade being carried on
therein and which are expressly adapted to meet the requirements of such trade of
industry.
Appellant emphasizes the first paragraph, and appellees the last mentioned
paragraph. We entertain no doubt that the trial judge and appellees are right in their
appreciation of the legal doctrines flowing from the facts. The judgment appealed
from is hereby affirmed.

FIRST DIVISION
[G.R. No. 156295. September 23, 2003]
MARCELO R. SORIANO, petitioner, vs. SPOUSES
ROSALINA GALIT, respondents.
DECISION
YNARES-SANTIAGO, J.:

RICARDO

and

Petitioner was issued a writ of possession in Civil Case No. 6643 [1] for Sum of
Money by the Regional Trial Court of Balanga, Bataan, Branch 1. The writ of
possession was, however, nullified by the Court of Appeals in CA-G.R. SP No.
65891[2] because it included a parcel of land which was not among those explicitly
enumerated in the Certificate of Sale issued by the Deputy Sheriff, but on which
stand the immovables covered by the said Certificate. Petitioner contends that the
sale of these immovables necessarily encompasses the land on which they stand.
Dissatisfied, petitioner filed the instant petition for review on certiorari.
Respondent Ricardo Galit contracted a loan from petitioner Marcelo Soriano, in
the total sum of P480,000.00, evidenced by four promissory notes in the amount of
P120,000.00 each dated August 2, 1996;[3] August 15, 1996;[4] September 4,
1996[5] and September 14, 1996.[6] This loan was secured by a real estate mortgage
over a parcel of land covered by Original Certificate of Title No. 569. [7] After he
failed to pay his obligation, Soriano filed a complaint for sum of money against him

with the Regional Trial Court of Balanga City, Branch 1, which was docketed as
Civil Case No. 6643.[8]
Respondents, the Spouses Ricardo and Rosalina Galit, failed to file their
answer. Hence, upon motion of Marcelo Soriano, the trial court declared the spouses
in default and proceeded to receive evidence for petitioner Soriano ex parte.
On July 7, 1997, the Regional Trial Court of Balanga City, Branch 1 rendered
judgment[9] in favor of petitioner Soriano, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the
defendant ordering the latter to pay:
1.

the plaintiff the amount of P350,000.00 plus 12% interest to be

computed from the dates of maturity of the promissory notes until
the same are fully paid;

2.

the plaintiff P20,000.00, as attorneys fees; and

3.

the costs of suit.

SO ORDERED.[10]
The judgment became final and executory. Accordingly, the trial court issued a
writ of execution in due course, by virtue of which, Deputy Sheriff Renato E. Robles
levied on the following real properties of the Galit spouses:
1.

2.

3.

A parcel of land covered by Original Certificate of Title No. T-569

(Homestead Patent No. 14692) situated in the Bo.
of Tapulac, Orani, Bataan. Bounded on the SW, along line 1-2 by
Lot No. 3, Cad. 145; containing an area of THIRTY FIVE
THOUSAND SEVEN HUNDRED FIFTY NINE (35,759)
SQUARE METERS, more or less x x x;
STORE/HOUSE CONSTRUCTED on Lot No. 1103 made of
strong materials G.I. roofing situated at Centro I, Orani, Bataan,
x x x containing an area of 30 sq. meters, more or less
x x x(constructed on TCT No. T40785);
BODEGA constructed on Lot 1103, made of strong materials, G.I.
roofing, situated in Centro I, Orani, Bataan, x x x with a floor area
of 42.75 sq. m. more or less x x x.[11]

At the sale of the above-enumerated properties at public auction held

on December 23, 1998, petitioner was the highest and only bidder with a bid price of

P483,000.00. Accordingly, on February 4, 1999, Deputy Sheriff Robles issued a

Certificate of Sale of Execution of Real Property,[12] which reads:
CERTIFICATE OF SALE ON EXECUTION OF REAL PROPERTY
TO ALL WHO MAY SEE THESE PRESENTS:
GREETINGS:
I HEREBY that (sic) by virtue of the writ of execution dated October 16, 1998,
issued in the above-entitled case by the HON. BENJAMIN T. VIANZON, ordering
the Provincial Sheriff of Bataan or her authorized Deputy Sheriff to cause to be made
(sic) the sum of P350,000.00 plus 12% interest to be computed from the date of
maturity of the promissory notes until the same are fully paid; P20,000.00 as
attorneys fees plus legal expenses in the implementation of the writ of execution, the
undersigned Deputy Sheriff sold at public auction on December 23, 1998 the rights
and interests of defendants Sps. Ricardo and Rosalina Galit, to the plaintiff
Marcelo Soriano, the highest and only bidder for the amount of FOUR HNDRED
EIGHTY THREE THOUSAND PESOS (P483,000.00, Philippine Currency), the
following real estate properties more particularly described as follows :
ORIGINAL CERTIFICATE OF TITLE NO. T-569
A parcel of land (Homestead Patent No. 14692) situated in the Bo.
of Tapulac, Orani, Bataan, x x x. Bounded on the SW., along line 1-2 by Lot No. 3,
Cad. 145, containing an area of THIRTY FIVE THOUSAND SEVEN HUNDRED
FIFTY NINE (35,759) SQUARE METERS, more or less x x x
TAX DEC. NO. PROPERTY INDEX NO. 018-09-001-02
STOREHOUSE constructed on Lot 1103, made of strong materials G.I. roofing
situated at Centro I, Orani, Bataan x x x containing an area of 30 sq. meters, more or
less x x (constructed on TCT No. 40785)
TAX DEC. NO. 86 PROPERTY INDEX No. 018-09-001-02
BODEGA constructed on Lot 1103, made of strong materials G.I. roofing situated
in Centro I, Orani, Bataan, x x x with a floor area of 42.75 sq. m. more or less x x x
IT IS FURTHER CERTIFIED, that the aforesaid highest and lone bidder,
Marcelo Soriano, being the plaintiff did not pay to the Provincial Sheriff
of Bataan the amount of P483,000.00, the sale price of the above-described property
which amount was credited to partial/full satisfaction of the judgment embodied in
the writ of execution.

The period of redemption of the above described real properties together with all the
improvements thereon will expire One (1) year from and after the registration of this
Certificate of Sale with the Register of Deeds.
This Certificate of Sheriffs Sale is issued to the highest and lone bidder,
Marcelo Soriano, under guarantees prescribed by law.
Balanga, Bataan, February 4, 1999.

WHEREAS on February 3, 2001, the counsel for plaintiff filed Motion for the
Issuance of Writ of Possession;
WHEREAS on June 4, 2001, this court issued an order granting the issuance of the
Writ of Possession;
WHEREFORE, you are hereby commanded to place the herein plaintiff
Marcelo Soriano in possession of the property involved in this case situated (sic)
more particularly described as:

On April 23, 1999, petitioner caused the registration of the Certificate of Sale
on Execution of Real Property with the Registry of Deeds.

1.

The said Certificate of Sale registered with the Register of Deeds includes at
the dorsal portion thereof the following entry, not found in the Certificate of Sale on
file with Deputy Sheriff Renato E. Robles:[13]

STORE HOUSE constructed on Lot No. 1103 situated at Centro

1, Orani, Bataan covered by TCT No. 40785;

2.

BODEGA constructed on Lot No. 1103 with an area of 42.75 square

meters under Tax Declaration No. 86 situated at Centro
1, Orani, Bataan;

3.

Original Certificate of Title No. 40785 with an area of 134 square

meters known as Lot No. 1103 of the Cadastral Survey of Orani

ORIGINAL CERTIFICATE OF TITLE NO. T-40785

A parcel of land (Lot No. 1103 of the Cadastral Survey of Orani) , with the
improvements thereon, situated in the Municipality of Orani, Bounded on the NE;
by Calle P. Gomez; on the E. by Lot No. 1104; on the SE by Calle Washington; and
on the W. by Lot 4102, containing an area of ONE HUNDRED THIRTY NINE (139)
SQUARE METERS, more or less. All points referred to are indicated on the plan;
bearing true; declination 0 deg. 40E., date of survey, February 191-March 1920.
On February 23, 2001, ten months from the time the Certificate of Sale on
Execution was registered with the Registry of Deeds, petitioner moved [14] for the
issuance of a writ of possession. He averred that the one-year period of redemption
had elapsed without the respondents having redeemed the properties sold at public
auction; thus, the sale of said properties had already become final. He also argued
that after the lapse of the redemption period, the titles to the properties should be
considered, for all legal intents and purposes, in his name and favor.[15]
On June 4, 2001, the Regional Trial Court of Balanga City, Branch 1 granted
the motion for issuance of writ of possession. [16] Subsequently, on July 18, 2001, a
writ of possession[17] was issued in petitioners favor which reads:
WRIT OF POSSESSION
Mr. Renato E. Robles
Deputy Sheriff
RTC, Br. 1, Balanga City
Greetings :

against the mortgagor/former owners Sps. Ricardo and Rosalinda (sic) Galit, her
(sic) heirs, successors, assigns and all persons claiming rights and interests adverse
to the petitioner and make a return of this writ every thirty (30) days from receipt
hereof together with all the proceedings thereon until the same has been fully
satisfied.
WITNESS THE HONORABLE BENJAMIN T. VIANZON, Presiding Judge, this
18th day of July 2001, at Balanga City.
(
Sgd) GILBERT S. ARGONZA
O
IC
Respondents filed a petition for certiorari with the Court of Appeals, which was
docketed as CA-G.R. SP No. 65891, assailing the inclusion of the parcel of land
covered by Transfer Certificate of Title No. T-40785 among the list of real properties
in the writ of possession.[18] Respondents argued that said property was not among
those sold on execution by Deputy Sheriff Renato E. Robles as reflected in the
Certificate of Sale on Execution of Real Property.
In opposition, petitioner prayed for the dismissal of the petition because
respondent spouses failed to move for the reconsideration of the assailed order prior
to the filing of the petition. Moreover, the proper remedy against the assailed order
of the trial court is an appeal, or a motion to quash the writ of possession.

On May 13, 2002, the Court of Appeals rendered judgment as follows:

WHEREFORE, the instant petition is hereby GRANTED. Accordingly, the writ of
possession issued by the Regional Trial Court of Balanga City, Branch 1, on 18 July
2001 is declared NULL and VOID.
In the event that the questioned writ of possession has already been implemented, the
Deputy Sheriff of the Regional Trial Court of Balanga City, Branch 1, and private
respondent Marcelo Soriano are hereby ordered to cause the redelivery of Transfer
Certificate of Title No. T-40785 to the petitioners.
SO ORDERED.[19]
Aggrieved, petitioner now comes to this Court maintaining that
1.)

THE SPECIAL CIVIL ACTION OF CERTIORARI UNDER RULE

65 IS NOT THE PLAIN, SPEEDY AND ADEQUATE REMEDY
OF THE RESPONDENTS IN ASSAILING THE WRIT OF
POSSESSION ISSUED BY THE LOWER COURT BUT THERE
WERE STILL OTHER REMEDIES AVAILABLE TO THEM
AND WHICH WERE NOT RESORTED TO LIKE THE FILING
OF A MOTION FOR RECONSIDERATION OR MOTION TO
QUASH OR EVEN APPEAL.

2.)

THE HONORABLE COURT OF APPEALS GRAVELY ERRED

IN DECLARAING THE CERTIFICATE OF SALE ON
EXECUTION OF REAL PROPERTY AS NULL AND VOID
AND SUBSEQUENTLY THE WRIT OF POSSESSION
BECAUSE THE SAME IS A PUBLIC DOCUMENT WHICH
ENJOYS THE PRESUMPTION OF REGULARITY AND IT
CANNOT BE OVERCOME BY A MERE STRANGE FEELING
THAT SOMETHING IS AMISS ON ITS SURFACE SIMPLY
BECAUSE THE TYPEWRITTEN WORDS ON THE FRONT
PAGE AND AT THE DORSAL PORTION THEREOF IS
DIFFERENT OR THAT IT IS UNLIKELY FOR THE SHERIFF
TO USE THE DORSAL PORTION OF THE FIRST PAGE
BECAUSE THE SECOND PAGE IS MERELY HALF FILLED
AND THE NOTATION ON THE DORSAL PORTION COULD
STILL BE MADE AT THE SECOND PAGE.

On the first ground, petitioner contends that respondents were not without
remedy before the trial court. He points out that respondents could have filed a
motion for reconsideration of the Order dated June 4, 1999, but they did not do so.
Respondents could also have filed an appeal but they, likewise, did not do so. When
the writ of possession was issued, respondents could have filed a motion to quash the

writ. Again they did not. Respondents cannot now avail of the special civil action
for certiorari as a substitute for these remedies. They should suffer the consequences
for sleeping on their rights.
We disagree.
Concededly, those who seek to avail of the procedural remedies provided by the
rules must adhere to the requirements thereof, failing which the right to do so is lost.
It is, however, equally settled that the Rules of Court seek to eliminate undue
reliance on technical rules and to make litigation as inexpensive as practicable and as
convenient as can be done.[20] This is in accordance with the primary purpose of the
1997 Rules of Civil Procedure as provided in Rule 1, Section 6, which reads:
Section 6. Construction. These rules shall be liberally construed in order to
promote their objective of securing a just, speedy and inexpensive determination of
every action and proceeding.[21]
The rules of procedure are not to be applied in a very rigid, technical sense and
are used only to help secure substantial justice. If a technical and rigid enforcement
of the rules is made, their aim would be defeated. [22] They should be liberally
construed so that litigants can have ample opportunity to prove their claims and thus
prevent a denial of justice due to technicalities. [23] Thus, in China Banking
Corporation v. Members of the Board of Trustees of Home Development Mutual
Fund,[24] it was held:
while certiorari as a remedy may not be used as a substitute for an appeal,
especially for a lost appeal, this rule should not be strictly enforced if the petition is
genuinely meritorious.[25] It has been said that where the rigid application of the
rules would frustrate substantial justice, or bar the vindication of a legitimate
grievance, the courts are justified in exempting a particular case from the
operation of the rules.[26] (Emphasis ours)
Indeed, well-known is the rule that departures from procedure may be forgiven
where they do not appear to have impaired the substantial rights of the parties.
[27]
Apropos in this regard is Cometa v. CA,[28] where we said that
There is no question that petitioners were remiss in attending with dispatch to the
protection of their interests as regards the subject lots, and for that reason the case in
the lower court was dismissed on a technicality and no definitive pronouncement on
the inadequacy of the price paid for the levied properties was ever made. In this
regard, it bears stressing that procedural rules are not to be belittled or dismissed
simply because their non-observance may have resulted in prejudice to a
partys substantive rights as in this case. Like all rules, they are required to be
followed except when only for the most persuasive of reasons they may be relaxed
to relieve a litigant of an injustice not commensurate with the degree of his

thoughtlessness in not complying with the procedure prescribed. [29] (emphasis and
italics supplied.)
In short, since rules of procedure are mere tools designed to facilitate the
attainment of justice, their strict and rigid application which would result in
technicalities that tend to frustrate rather than promote substantial justice must
always be avoided.[30] Technicality should not be allowed to stand in the way of
equitably and completely resolving the rights and obligations of the parties.[31]
Eschewing, therefore, the procedural objections raised by petitioner, it
behooves us to address the issue of whether or not the questioned writ of possession
is in fact a nullity considering that it includes real property not expressly mentioned
in the Certificate of Sale of Real Property.
Petitioner, in sum, dwells on the general proposition that since the certificate of
sale is a public document, it enjoys the presumption of regularity and all entries
therein are presumed to be done in the performance of regular functions.
The argument is not persuasive.
There are actually two (2) copies of the Certificate of Sale on Execution of Real
Properties issued on February 4, 1999 involved, namely: (a) copy which is on file
with the deputy sheriff; and (b) copy registered with the Registry of Deeds. The
object of scrutiny, however, is not the copy of the Certificate of Sale on Execution of
Real Properties issued by the deputy sheriff on February 4, 1999, [32] but the copy
thereof subsequently registered by petitioner with the Registry of Deeds on April 23,
1999,[33] which included an entry on the dorsal portion of the first page thereof
describing a parcel of land covered by OCT No. T-40785 not found in the Certificate
of Sale of Real Properties on file with the sheriff.
True, public documents by themselves may be adequate to establish the
presumption of their validity. However, their probative weight must be evaluated not
in isolation but in conjunction with other evidence adduced by the parties in the
controversy, much more so in this case where the contents of a copy thereof
subsequently registered for documentation purposes is being contested. No reason
has been offered how and why the questioned entry was subsequently intercalated in
the copy of the certificate of sale subsequently registered with the Registry of Deeds.
Absent any satisfactory explanation as to why said entry was belatedly inserted, the
surreptitiousness of its inclusion coupled with the furtive manner of its intercalation
casts serious doubt on the authenticity of petitioners copy of the Certificate of Sale.
Thus, it has been held that while a public document like a notarized deed of sale is
vested with the presumption of regularity, this is not a guarantee of the validity of its
contents.[34]
It must be pointed out in this regard that the issuance of a Certificate of Sale is
an end result of judicial foreclosure where statutory requirements are strictly adhered
to; where even the slightest deviations therefrom will invalidate the
proceeding[35] and the sale.[36] Among these requirements is an explicit enumeration

and correct description of what properties are to be sold stated in the notice.
The stringence in the observance of these requirements is such that an incorrect title
number together with a correct technical description of the property to be sold
and vice versa is deemed a substantial and fatal error which results in the
invalidation of the sale.[37]
The certificate of sale is an accurate record of what properties were actually
sold to satisfy the debt. The strictness in the observance of accuracy and correctness
in the description of the properties renders the enumeration in the certificate
exclusive. Thus, subsequently including properties which have not been explicitly
mentioned therein for registration purposes under suspicious circumstances smacks
of fraud. The explanation that the land on which the properties sold is necessarily
included and, hence, was belatedly typed on the dorsal portion of the copy of the
certificate subsequently registered is at best a lame excuse unworthy of belief.
The appellate court correctly observed that there was a marked difference in the
appearance of the typewritten words appearing on the first page of the copy of the
Certificate of Sale registered with the Registry of Deeds [38] and those appearing at the
dorsal portion thereof. Underscoring the irregularity of the intercalation is the clearly
devious attempt to let such an insertion pass unnoticed by typing the same at the
back of the first page instead of on the second page which was merely half-filled and
could accommodate the entry with room to spare.
The argument that the land on which the buildings levied upon in execution is
necessarily included is, likewise, tenuous. Article 415 of the Civil Code provides:
ART. 415. The following are immovable property:
(1)

Land, buildings, roads and constructions of all kinds adhered to the soil.
xxx

xxx
xxx

(3) Everything attached to an immovable in a fixed manner, in such a way that it

cannot be separated therefrom without breaking them material or deterioration of the
object;
(4) Statues, reliefs, paintings or other objects for use or ornamentation, placed in
buildings or on lands by the owner of the immovable in such a manner that it reveals
the intention to attach them permanently to the tenements;
(5) Machinery, receptacles, instruments or implements intended by the owner of
the tenement for an industry or works which may be carried on in a building or on a
piece of land, and which tend directly to meet the needs of the said industry or
works;

(6) Animal houses, pigeon houses, beehives, fish ponds or breeding places of
similar nature, in case their owner has placed them or preserves them with the
intention to have them permanently attached to the land, and forming a permanent
part of it; the animals in these places are also included;
xxx

xxx
xxx

(9) Docks and structures which, though floating, are intended by their nature and
object to remain at a fixed place on a river, lake or coast;
xxx

xxx
x x x.

The foregoing provision of the Civil Code enumerates land and

buildings separately. This can only mean that a building is, by itself, considered
immovable.[39] Thus, it has been held that
. . . while it is true that a mortgage of land necessarily includes, in the absence of
stipulation of the improvements thereon, buildings, still a building by itself may be
mortgaged apart from the land on which it has been built. Such mortgage would be
still a real estate mortgage for the building would still be considered immovable
property even if dealt with separately and apart from the land.[40] (emphasis and
italics supplied)
In this case, considering that what was sold by virtue of the writ of execution
issued by the trial court was merely the storehouse and bodega constructed on the
parcel of land covered by Transfer Certificate of Title No. T-40785, which by
themselves are real properties of respondents spouses, the same should be regarded
as separate and distinct from the conveyance of the lot on which they stand.
WHEREFORE, in view of all the foregoing, the petition is hereby DENIED
for lack of merit. The Decision dated May 13, 2002 of the Court of Appeals in CAG.R. SP No. 65891, which declared the writ of possession issued by
the Regional Trial Court of Balanga City, Branch 1, on July 18, 2001, null and void,
is AFFIRMED in toto.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Vitug, and Carpio, JJ., concur.
Azcuna, J., on leave.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

G.R. No. L-61311 September 2l, 1987

FELICIDAD VILLANUEVA, FERNANDO CAISIP, ANTONIO LIANG,
FELINA MIRANDA, RICARDO PUNO, FLORENCIO LAXA, and RENE
OCAMPO, petitioners,
vs.
HON. MARIANO CASTAEDA, JR., Presiding Judge of the Court of First
Instance of Pampanga, Branch III, VICENTE A. MACALINO, Officer-inCharge, Office of the Mayor, San Fernando, Pampanga, respondents.
CRUZ, J.:
There is in the vicinity of the public market of San Fernando, Pampanga, along
Mercado Street, a strip of land measuring 12 by 77 meters on which stands a
conglomeration of vendors stalls together forming what is commonly known as
atalipapa. This is the subject of the herein petition. The petitioners claim they have a
right to remain in and conduct business in this area by virtue of a previous
authorization granted to them by the municipal government. The respondents deny
this and justify the demolition of their stalls as illegal constructions on public
property. At the petitioners' behest, we have issued a temporary restraining order to
preserve the status quo between the parties pending our decision. 1 Now we shall
rule on the merits.
This dispute goes back to November 7, 1961, when the municipal council of San
Fernando adopted Resolution No. 218 authorizing some 24 members of the
Fernandino United Merchants and Traders Association to construct permanent stags
and sell in the above-mentioned place. 2 The action was protested on November 10,
1961, in Civil Case No. 2040, where the Court of First Instance of Pampanga,
Branch 2, issued a writ of preliminary injunction that prevented the defendants from
constructing the said stalls until final resolution of the controversy. 3 On January 18,
1964, while this case was pending, the municipal council of San Fernando adopted
Resolution G.R. No. 29, which declared the subject area as "the parking place and as
the public plaza of the municipality, 4 thereby impliedly revoking Resolution No.
218, series of 1961. Four years later, on November 2, 1968, Judge Andres C. Aguilar
decided the aforesaid case and held that the land occupied by the petitioners, being
public in nature, was beyond the commerce of man and therefore could not be the
subject of private occupancy. 5 The writ of preliminary injunction was made
permanent. 6
The decision was apparently not enforced, for the petitioners were not evicted from
the place; in fact, according to then they and the 128 other persons were in 1971
assigned specific areas or space allotments therein for which they paid daily fees to
the municipal government. 7 The problem appears to have festered for some more
years under a presumably uneasy truce among the protagonists, none of whom made
any move, for some reason that does not appear in the record. Then, on January 12,
1982, the Association of Concerned Citizens and Consumers of San Fernando filed a

petition for the immediate implementation of Resolution No. 29, to restore the
subject property "to its original and customary use as a public plaza. 8
Acting thereon after an investigation conducted by the municipal
attorney, 9 respondent Vicente A. Macalino, as officer-in-charge of the office of the
mayor of San Fernando, issued on June 14, 1982, a resolution requiring the
municipal treasurer and the municipal engineer to demolish the stalls in the subject
place beginning July 1, 1982. 10 The reaction of the petitioners was to file a petition
for prohibition with the Court of First Instance of Pampanga, docketed as Civil Case
No. 6470, on June 26, 1982. The respondent judge denied the petition on July 19,
1982, 11 and the motion for reconsideration on August 5, 1982, 12 prompting the
petitioners to come to this Court on certiorari to challenge his decision. 13
As required, respondent Macalino filed his comment 14 on the petition, and the
petitioners countered with their reply. 15 In compliance with our resolution of
February 2, 1983, the petitioners submitted their memorandum 16 and respondent
Macalino, for his part, asked that his comment be considered his
memorandum. 17 On July 28, 1986, the new officer-in-charge of the office of the
mayor of San Fernando, Paterno S. Guevarra, was impleaded in lieu of Virgilio
Sanchez, who had himself earlier replaced the original respondent Macalino. 18
After considering the issues and the arguments raised by the parties in their
respective pleadings, we rule for the respondents. The petition must be dismissed.
There is no question that the place occupied by the petitioners and from which they
are sought to be evicted is a public plaza, as found by the trial court in Civil Case
No. 2040. This finding was made after consideration of the antecedent facts as
especially established by the testimony of former San Fernando Mayor Rodolfo
Hizon, who later became governor of Pampanga, that the National Planning
Commission had reserved the area for a public plaza as early as 1951. This intention
was reiterated in 1964 through the adoption of Resolution No. 29. 19
It does not appear that the decision in this case was appealed or has been reversed. In
Civil Case G.R. No. 6740, which is the subject of this petition, the respondent judge
saw no reason to disturb the finding in Civil Case No. 2040 and indeed used it as a
basis for his own decision sustaining the questioned order. 20
The basic contention of the petitioners is that the disputed area is under lease to them
by virtue of contracts they had entered into with the municipal government, first in
1961 insofar as the original occupants were concerned, and later with them and the
other petitioners by virtue of the space allocations made in their favor in 1971 for
which they saw they are paying daily fees. 21 The municipal government has denied
making such agreements. In any case, they argue, since the fees were collected daily,
the leases, assuming their validity, could be terminated at will, or any day, as the
claimed rentals indicated that the period of the leases was from day to day. 22

The parties belabor this argument needlessly.

A public plaza is beyond the commerce of man and so cannot be the subject of lease
or any other contractual undertaking. This is elementary. Indeed, this point was
settled as early as in Municipality of Cavite vs. Rojas, 23 decided in 1915, where the
Court declared as null and void the lease of a public plaza of the said municipality in
favor of a private person.
Justice Torres said in that case:
According to article 344 of the Civil Code: "Property for public
use in provinces and in towns comprises the provincial and town
roads, the squares, streets, fountains, and public waters, the
promenades, and public works of general service supported by said
towns or provinces.
The said Plaza Soledad being a promenade for public use, the
municipal council of Cavite could not in 1907 withdraw or exclude
from public use a portion thereof in order to lease it for the sole
benefit of the defendant Hilaria Rojas. In leasing a portion of said
plaza or public place to the defendant for private use the plaintiff
municipality exceeded its authority in the exercise of its powers by
executing a contract over a thing of which it could not dispose, nor
is it empowered so to do.
The Civil Code, article 1271, prescribes that everything which is
not outside the commerce of man may be the object of a contract,
and plazas and streets are outside of this commerce, as was decided
by the supreme court of Spain in its decision of February 12, 1895,
which says: "communal things that cannot be sold because they are
by their very nature outside of commerce are those for public use,
such as the plazas, streets, common lands, rivers, fountains, etc."
Therefore, it must be concluded that the contract, Exhibit C,
whereby the municipality of Cavite leased to Hilaria Rojas a
portion of the Plaza Soledad is null and void and of no force or
effect, because it is contrary to the law and the thing leased cannot
be the object of a was held that the City of contract.
In Muyot vs. de la Fuente, 24 it was held that the City of Manila could not lease a
portion of a public sidewalk on Plaza Sta. Cruz, being likewise beyond the
commerce of man.
Echoing Rojas, the decision said:

Appellants claim that they had obtained permit from the present of
the City of Manila, to connect booths Nos. 1 and 2, along the
premises in question, and for the use of spaces where the booths
were constructed, they had paid and continued paying the
corresponding rentals. Granting this claim to be true, one should
not entertain any doubt that such permit was not legal, because the
City of Manila does not have any power or authority at all to lease
a portion of a public sidewalk. The sidewalk in question, forming
part of the public plaza of Sta. Cruz, could not be a proper subject
matter of the contract, as it was not within the commerce of man
(Article 1347, new Civil Code, and article 1271, old Civil Code).
Any contract entered into by the City of Manila in connection with
the sidewalk, is ipso facto null and ultra vires. (Municipality of
Cavite vs. Roxas, et a1, 30 Phil. 603.) The sidewalk in question
was intended for and was used by the public, in going from one
place to another. "The streets and public places of the city shall be
kept free and clear for the use of the public, and the sidewalks and
crossings for the pedestrians, and the same shall only be used or
occupied for other purpose as provided by ordinance or
regulation; ..." (Sec. 1119, Revised Ordinances of the City of
Manila.) The booths in question served as fruit stands for their
owners and often, if not always, blocked the fire passage of
pedestrians who had to take the plaza itself which used to be
clogged with vehicular traffic.
Exactly in point is Espiritu vs. Municipal Council of Pozorrubio, 25 where the
Supreme Court declared:
There is absolutely no question that the town plaza cannot be used
for the construction of market stalls, specially of residences, and
that such structures constitute a nuisance subject to abatement
according to law. Town plazas are properties of public dominion,
to be devoted to public use and to be made available to the public
in general They are outside the common of man and cannot be
disposed of or even leased by the municipality to private parties.
Applying this well-settled doctrine, we rule that the petitioners had no right in the
first place to occupy the disputed premises and cannot insist in remaining there now
on the strength of their alleged lease contracts. They should have realized and
accepted this earlier, considering that even before Civil Case No. 2040 was decided,
the municipalcouncil of San Fernando had already adopted Resolution No. 29, series
of 1964, declaring the area as the parking place and public plaza of the municipality.
It is the decision in Civil Case No. 2040 and the said resolution of the municipal
council of San Fernando that respondent Macalino was seeking to enforce when he
ordered the demolition of the stags constructed in the disputed area. As officer-in-

charge of the office of the mayor, he had the duty to clear the area and restore it to its
intended use as a parking place and public plaza of the municipality of San
Fernando, conformably to the aforementioned orders from the court and the council.
It is, therefore, not correct to say that he had acted without authority or taken the law
into his hands in issuing his order.
Neither can it be said that he acted whimsically in exercising his authority for it has
been established that he directed the demolition of the stalls only after, upon his
instructions, the municipal attorney had conducted an investigation, to look into the
complaint filed by the Association of Concerned Citizens and Consumers of San
Fernando. 26 There is evidence that the petitioners were notified of this
hearing, 27which they chose to disregard. Photographs of the disputed area, 28 which
does look congested and ugly, show that the complaint was valid and that the area
really needed to be cleared, as recommended by the municipal attorney.
The Court observes that even without such investigation and recommendation, the
respondent mayor was justified in ordering the area cleared on the strength alone of
its status as a public plaza as declared by the judicial and legislative authorities. In
calling first for the investigation (which the petitioner saw fit to boycott), he was just
scrupulously paying deference to the requirements of due process, to remove an taint
of arbitrariness in the action he was caged upon to take.
Since the occupation of the place in question in 1961 by the original 24 stallholders
(whose number later ballooned to almost 200), it has deteriorated increasingly to the
great prejudice of the community in general. The proliferation of stags therein, most
of them makeshift and of flammable materials, has converted it into a veritable fire
trap, which, added to the fact that it obstructs access to and from the public market
itself, has seriously endangered public safety. The filthy condition of
the talipapa, where fish and other wet items are sold, has aggravated health and
sanitation problems, besides pervading the place with a foul odor that has spread into
the surrounding areas. The entire place is unsightly, to the dismay and
embarrassment of the inhabitants, who want it converted into a showcase of the town
of which they can all be proud. The vendors in the talipapa have also spilled into the
street and obstruct the flow of traffic, thereby impairing the convenience of motorists
and pedestrians alike. The regular stallholders in the public market, who pay
substantial rentals to the municipality, are deprived of a sizable volume of business
from prospective customers who are intercepted by thetalipapa vendors before they
can reach the market proper. On top of all these, the people are denied the proper use
of the place as a public plaza, where they may spend their leisure in a relaxed and
even beautiful environment and civic and other communal activities of the town can
be held.
The problems caused by the usurpation of the place by the petitioners are covered by
the police power as delegated to the municipality under the general welfare
clause. 29 This authorizes the municipal council "to enact such ordinances and make
such regulations, not repugnant to law, as may be necessary to carry into effect and

discharge the powers and duties conferred upon it by law and such as shall seem
necessary and proper to provide for the health and safety, promote the prosperity,
improve the morals, peace, good order, comfort, and convenience of the municipality
and the inhabitants thereof, and for the protection of property therein." This authority
was validly exercised in this casethrough the adoption of Resolution No. 29, series of
1964, by the municipal council of San Fernando.
Even assuming a valid lease of the property in dispute, the resolution could have
effectively terminated the agreement for it is settled that the police power cannot be
surrendered or bargained away through the medium of a contract. 30 In fact, every
contract affecting the public interest suffers a congenital infirmity in that it contains
an implied reservation of the police power as a postulate of the existing legal
order. 31 This power can be activated at any time to change the provisions of the
contract, or even abrogate it entirely, for the promotion or protection of the general
welfare. Such an act will not militate against the impairment clause, which is subject
to and limited by the paramount police power. 32
We hold that the respondent judge did not commit grave abuse of discretion in
denying the petition for prohibition. On the contrary, he acted correctly in sustaining
the right and responsibility of the mayor to evict the petitioners from the disputed
area and clear it of an the structures illegally constructed therein.
The Court feels that it would have been far more amiable if the petitioners
themselves, recognizing their own civic duty, had at the outset desisted from their
original stance and withdrawn in good grace from the disputed area to permit its
peaceful restoration as a public plaza and parking place for the benefit of the whole
municipality. They owned this little sacrifice to the community in general which has
suffered all these many years because of their intransigence. Regrettably, they have
refused to recognize that in the truly democratic society, the interests of the few
should yield to those of the greater number in deference to the principles that the
welfare of the people is the supreme law and overriding purpose. We do not see any
altruism here. The traditional ties of sharing are absent here. What we find, sad to
say, is a cynical disdaining of the spirit of "bayanihan," a selfish rejection of the
cordial virtues of "pakikisama " and "pagbibigayan" which are the hallmarks of our
people.
WHEREFORE, the petition is DISMISSED. The decision dated July 19, 1982, and
the order-dated August 5, 1982, are AFFIRMED. The temporary restraining order
dated August 9, 1982, is LIFTED. This decision is immediately executory. Costs
against the petitioners.
SO ORDERED.
Teehankee, C.J., Narvasa and Paras, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 93654 May 6, 1992
FRANCISCO U. DACANAY, petitioner,
vs.
MAYOR MACARIO ASISTIO, JR., CITY ENGR. LUCIANO SARNE, JR. of
Kalookan City, Metro Manila, MILA PASTRANA AND/OR RODOLFO
TEOFE, STALLHOLDERS AND REPRESENTING COSTALLHOLDERS,respondents.
David D. Advincula, Jr. for petitioner.
Juan P. Banaga for private respondents.
GRIO-AQUINO, J.:
May public streets or thoroughfares be leased or licensed to market stallholders by
virtue of a city ordinance or resolution of the Metro Manila Commission? This issue
is posed by the petitioner, an aggrieved Caloocan City resident who filed a special
civil action of mandamus against the incumbent city mayor and city engineer, to
compel these city officials to remove the market stalls from certain city streets which
the aforementioned city officials have designated as flea markets, and the private
respondents (stallholders) to vacate the streets.
On January 5, 1979, MMC Ordinance No. 79-02 was enacted by the Metropolitan
Manila Commission, designating certain city and municipal streets, roads and open
spaces as sites for flea markets. Pursuant, thereto, the Caloocan City mayor opened
up seven (7) flea markets in that city. One of those streets was the "Heroes del '96"
where the petitioner lives. Upon application of vendors Rodolfo Teope, Mila
Pastrana, Carmen Barbosa, Merle Castillo, Bienvenido Menes, Nancy Bugarin, Jose
Manuel, Crisaldo Paguirigan, Alejandro Castron, Ruben Araneta, Juanita and Rafael
Malibaran, and others, the respondents city mayor and city engineer, issued them
licenses to conduct vending activities on said street.
In 1987, Antonio Martinez, as OIC city mayor of Caloocan City, caused the
demolition of the market stalls on Heroes del '96, V. Gozon and Gonzales streets. To
stop Mayor Martinez' efforts to clear the city streets, Rodolfo Teope, Mila Pastrana
and other stallowners filed an action for prohibition against the City of Caloocan, the
OIC City Mayor and the City Engineer and/or their deputies (Civil Case No. C12921) in the Regional Trial Court of Caloocan City, Branch 122, praying the court
to issue a writ of preliminary injunction ordering these city officials to discontinue
the demolition of their stalls during the pendency of the action.

The court issued the writ prayed for. However, on December 20, 1987, it dismissed
the petition and lifted the writ of preliminary injunction which it had earlier issued.
The trial court observed that:
A perusal of Ordinance 2, series of 1979 of the Metropolitan
Manila Commission will show on the title itself that it is an
ordinance
Authorizing and regulating the use of certain city
and/or municipal streets, roads and open spaces
within Metropolitan Manila as sites for flea
market and/or vending areas, under certain terms
and conditions, subject to the approval of the
Metropolitan Manila Commission, and for other
purposes
which is further amplified in Section 2 of the said ordinance,
quoted hereunder:
Sec. 2. The streets, roads and open spaces to be used as sites for
flea markets (tiangge) or vending areas; the design, measurement
or specification of the structures, equipment and apparatuses to be
used or put up; the allowable distances; the days and time allowed
for the conduct of the businesses and/or activities herein
authorized; the rates or fees or charges to be imposed, levied and
collected; the kinds of merchandise, goods and commodities sold
and services rendered; and other matters and activities related to
the establishment, maintenance and management and operation of
flea markets and vending areas, shall be determined and prescribed
by the mayors of the cities and municipalities in the Metropolitan
Manila where the same are located, subject to the approval of the
Metropolitan Manila Commission and consistent with the
guidelines hereby prescribed.
Further, it is so provided in the guidelines under the said Ordinance
No. 2 of the MMC that
Sec. 6. In the establishment, operation, maintenance and
management of flea markets and vending areas, the following
guidelines, among others, shall be observed:
xxx xxx xxx
(m) That the permittee shall remove the equipment, facilities and
other appurtenances used by him in the conduct of his

business after the close or termination of business

hours. (Emphasis ours; pp. 15-16, Rollo.)
The trial court found that Heroes del '96, Gozon and Gonzales streets are of public
dominion, hence, outside the commerce of man:
The Heroes del '96 street, V. Gozon street and Gonzales street,
being of public dominion must, therefore, be outside of the
commerce of man. Considering the nature of the subject premises,
the following jurisprudence co/principles are applicable on the
matter:
1) They cannot be alienated or leased or
otherwise be the subject matter of contracts.
(Municipality of Cavite vs. Rojas, 30 Phil. 602);
2) They cannot be acquired by prescription
against the state (Insular Government vs.
Aldecoa, 19 Phil. 505). Even municipalities can
not acquire them for use as communal lands
against the state (City of Manila vs. Insular
Government, 10 Phil. 327);
3) They are not subject to attachment and
execution (Tan Toco vs. Municipal Council of
Iloilo, 49 Phil. 52);
4) They cannot be burdened by any voluntary
easement (2-II Colin & Capitant 520) (Tolentino,
Civil Code of the Phils., Vol. II, 1983 Ed. pp. 2930).
In the aforecited case of Municipality of Cavite
vs. Rojas, it was held that properties for public
use may not be leased to private individuals.
Such a lease is null and void for the reason that a
municipal council cannot withdraw part of the
plaza from public use. If possession has already
been given, the lessee must restore possession by
vacating it and the municipality must thereupon
restore to him any sums it may have collected as
rent.
In the case of City of Manila vs. Gerardo Garcia,
19 SCRA 413, the Supreme Court held:

The property being a public

one, the Manila Mayors did
not have the authority to give
permits, written or oral, to the
squatters, and that the permits
granted are therefore
considered null and void.
This doctrine was reiterated in
the case of Baguio Citizens
Action Inc. vs. The City
Council, 121 SCRA 368,
where it was held that:
An ordinance legalizing the
occupancy by squatters of
public land is null and void.
The authority of respondent Municipality of
Makati to demolish the shanties of the
petitioner's members is mandated by
P.D. 772, and Sec. 1 of Letter of Instruction No.
19 orders certain public officials, one of whom is
the Municipal Mayor to remove all illegal
constructions including buildings on and along
esteros and river banks, those along railroad
tracks and those built without permits on public
or private property (Zansibarian Residents
Association vs. Mun. of Makati, 135 SCRA
235). The City Engineer is also among those
required to comply with said Letter of
Instruction.
The occupation and use of private individuals of
sidewalks and other public places devoted for
public use constitute both public and private
nuisances and nuisance per se, and this applies
to even case involving the use or lease of public
places under permits and licenses issued by
competent authority, upon the theory that such
holders could not take advantage of their
unlawful permits and license and claim that the
land in question is a part of a public street or a
public place devoted to public use, hence,
beyond the commerce of man. (Padilla, Civil

Code Annotated, Vol. II, p. 59, 6th Ed., citing

Umali vs. Aquino, IC. A. Rep. 339.)
From the aforequoted jurisprudence/principles, the Court opines
that defendants have the right to demolish the subject stalls of the
plaintiffs, more so when Section 185, par. 4 of Batas Pambansa
Blg. 337, otherwise known as the Local Government Code
provides that the City Engineer shall:
(4) . . .
(c) Prevent the encroachment
of private buildings and fences
on the streets and public
places;
xxx xxx xxx
(j) Inspect and supervise the
construction, repair, removal
and safety of private buildings;
xxx xxx xxx
(k) With the previous approval
of the City Mayor in each case,
order the removal of materials
employed in the construction
or repair of any building or
structures made in violation of
law or ordinance, and cause
buildings and structures
dangerous to the public to
made secure or torn down;
xxx xxx xxx
Further, the Charter of the City of Caloocan, Republic Act No.
5502, Art. VII, Sec. 27, par. g, 1 and m, grants the City Engineer
similar powers. (Emphasis supplied; pp. 17-20, Rollo.)
However, shortly after the decision came out, the city administration in Caloocan
City changed hands. City Mayor Macario Asistio, Jr., as successor of Mayor

Martinez, did not pursue the latter's policy of clearing and cleaning up the city
streets.

stalls on V. Gozon, Gonzales and Heroes del '96 Streets and to enforce P.D. No. 772
and other pertinent laws.

Invoking the trial court's decision in Civil Case No. C-12921, Francisco U. Dacanay,
a concerned citizen, taxpayer and registered voter of Barangay 74, Zone 7, District II
of Caloocan City, who resides on Heroes del '96 Street, one of the affected streets,
wrote a letter dated March 7, 1988 to Mayor Asistio, Jr., calling his attention to the
illegally-constructed stalls on Heroes del '96 Street and asked for their demolition.

On August 16, 1990, the public respondents, through the City Legal Officer, filed
their Comment' on the petition. The Office of the Solicitor General asked to be
excused from filing a separate Comment in behalf of the public respondents. The
City Legal Officer alleged that the vending area was transferred to Heroes del '96
Street to decongest Malonzo Street, which is comparatively a busier thoroughfare;
that the transfer was made by virtue of Barangay Resolution No. 30 s'78 dated
January 15, 1978; that while the resolution was awaiting approval by the
Metropolitan Manila Commission, the latter passed Ordinance No. 79-2, authorizing
the use of certain streets and open spaces as sites for flea markets and/or vending
areas; that pursuant thereto, Acting MMC Mayor Virgilio P. Robles issued Executive
Order No. 135 dated January 10, 1979, ordering the establishment and operation of
flea markets in specified areas and created the Caloocan City Flea Market Authority
as a regulatory body; and that among the sites chosen and approved by the Metro
Manila Commission, Heroes del '96 Street has considered "most viable and
progressive, lessening unemployment in the city and servicing the residents with
affordable basic necessities."

Dacanay followed up that letter with another one dated April 7, 1988 addressed to
the mayor and the city engineer, Luciano Sarne, Jr. (who replaced Engineer Arturo
Samonte), inviting their attention to the Regional Trial Court's decision in Civil Case
No. 12921. There was still no response.
Dacanay sought President Corazon C. Aquino's intervention by writing her a letter
on the matter. His letter was referred to the city mayor for appropriate action. The
acting Caloocan City secretary, Asuncion Manalo, in a letter dated August 1, 1988,
informed the Presidential Staff Director that the city officials were still studying the
issue of whether or not to proceed with the demolition of the market stalls.
Dacanay filed a complaint against Mayor Asistio and Engineer Sarne (OMB-0-890146) in the Office of the OMBUDSMAN. In their letter-comment dated April 3,
1989, said city officials explained that in view of the huge number of stallholders
involved, not to mention their dependents, it would be harsh and inhuman to eject
them from the area in question, for their relocation would not be an easy task.

The petition for mandamus is meritorious.

In reply, Dacanay maintained that respondents have been derelict in the performance
of their duties and through manifest partiality constituting a violation of Section 3(e)
of R.A. 3019, have caused undue injury to the Government and given unwarranted
benefits to the stallholders.

There is no doubt that the disputed areas from which the private respondents' market
stalls are sought to be evicted are public streets, as found by the trial court in Civil
Case No. C-12921. A public street is property for public use hence outside the
commerce of man (Arts. 420, 424, Civil Code). Being outside the commerce of man,
it may not be the subject of lease or other contract (Villanueva et al. vs. Castaeda
and Macalino, 15 SCRA 142, citing the Municipality of Cavite vs. Rojas, 30 SCRA
602; Espiritu vs. Municipal Council of Pozorrubio, 102 Phil. 869; and Muyot vs. De
la Fuente, 48 O.G. 4860).

After conducting a preliminary investigation, the OMBUDSMAN rendered a final

evaluation and report on August 28, 1989, finding that the respondents' inaction is
purely motivated by their perceived moral and social responsibility toward their
constituents, but "the fact remains that there is an omission of an act which ought to
be performed, in clear violation of Sections 3(e) and (f) of Republic Act 3019." (pp.
83-84, Rollo.) The OMBUDSMAN recommended the filing of the corresponding
information in court.

As the stallholders pay fees to the City Government for the right to occupy portions
of the public street, the City Government, contrary to law, has been leasing portions
of the streets to them. Such leases or licenses are null and void for being contrary to
law. The right of the public to use the city streets may not be bargained away through
contract. The interests of a few should not prevail over the good of the greater
number in the community whose health, peace, safety, good order and general
welfare, the respondent city officials are under legal obligation to protect.

As the stallholders continued to occupy Heroes del '96 Street, through the tolerance
of the public respondents, and in clear violation of the decision it Civil Case No. C12921, Dacanay filed the present petition for mandamus on June 19, 1990, praying
that the public respondents be ordered to enforce the final decision in Civil Case No.
C-12921 which upheld the city mayor's authority to order the demolition of market

The Executive Order issued by Acting Mayor Robles authorizing the use of Heroes
del '96 Street as a vending area for stallholders who were granted licenses by the city
government contravenes the general law that reserves city streets and roads for
public use. Mayor Robles' Executive Order may not infringe upon the vested right of
the public to use city streets for the purpose they were intended to serve: i.e., as
arteries of travel for vehicles and pedestrians. As early as 1989, the public

respondents bad started to look for feasible alternative sites for flea markets. They
have had more than ample time to relocate the street vendors.
WHEREFORE, it having been established that the petitioner and the general public
have a legal right to the relief demanded and that the public respondents have the
corresponding duty, arising from public office, to clear the city streets and restore
them to their specific public purpose (Enriquez vs. Bidin, 47 SCRA 183; City of
Manila vs. Garcia et al., 19 SCRA, 413 citing Unson vs. Lacson, 100 Phil. 695), the
respondents City Mayor and City Engineer of Caloocan City or their successors in
office are hereby ordered to immediately enforce and implement the decision in Civil
Case No. C-1292 declaring that Heroes del '96, V. Gozon, and Gonzales Streets are
public streets for public use, and they are ordered to remove or demolish, or cause to
be removed or demolished, the market stalls occupying said city streets with utmost
dispatch within thirty (30)days from notice of this decision. This decision is
immediately executory.
SO ORDERED.
Narvasa, C.J., Melecio-Herrera, Gutierrez, Jr. Cruz, Paras, Feliciano, Padilla,
Bidin, Medialdea, Regalado, Davide, Jr., Romero and Nocon, JJ., concur.
Bellosillo, J., took no part.
FIRST DIVISION
FRISCO F. DOMALSIN,
Petitioner,

G.R. No. 158687

Present:
PANGANIBAN, C.J.
Chairman,
YNARES-SANTIAGO,
AUSTRIA-MARTINEZ,
CALLEJO, SR.[1] and
CHICO-NAZARIO, JJ.

- versus -

SPOUSES JUANITO VALENCIANO and

AMALIA VALENCIANO,
Respondents.

Promulgated:

January 25, 2006

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION

CHICO-NAZARIO, J.:
Before Us is a petition for review which seeks to set aside the decision [2] of the
Court of Appeals in CA-G.R. SP No. 69415 dated 20 August 2002 which reversed
and set aside the decision[3] of Branch 63 of the Regional Trial Court (RTC) of La
Trinidad, Benguet, in Civil Case No. 01-CV-1582(150) dated 23 January 2002,
which affirmed the decision[4] of the Municipal Circuit Trial Court (MCTC) of TubaSablan, Tuba, Benguet, in Civil Case No. 150 dated 20 November 2000, declaring
petitioner Frisco F. Domalsin the actual possessor of the lot in dispute and
ordering, inter alia, respondent spouses Juanito and Amalia Valenciano to vacate and
deliver the physical possession thereof to the former, and its Resolution [5] dated 20
May 2003 denying petitioners motion for reconsideration.
The respective allegations of the parties as contained in the complaint and
answer are substantially summarized by the Court of Appeals as follows:
The property subject of this action for forcible entry is a
parcel of land located at sitio Riverside, Camp 3, Tuba, Benguet.
Respondent Frisco B. Domalsin claims to be the lawful owner and
possessor of said parcel of land since 1979 up to the present. He
declared it for taxation purposes in 1983 as (per) Tax Declaration
No. 9540 issued on September 12, 1983 by the Municipal Assessor
of Tuba Benguet. He allegedly introduced improvements
consisting of levelling, excavation, riprapping of the earth and a
private road to the river, fruitbearing trees and other agricultural
plants of economic value. He was in continuous, adverse
possession and in the concept of an owner for the past nineteen
(19) years.
On August 1, 1998, petitioners Spouses Juanito
Valenciano and Amalia Valenciano (Sps. Valenciano, for brevity)
allegedly entered the premises to construct a building made of
cement and strong materials, without the authority and consent of
respondent, by means of force and strategy, and without a building
permit from the Department of Public Works and Highways
(DPWH, for brevity). Respondent protested and demanded that
petitioners Sps. Valenciano halt construction of said building, but
the latter refused to do so. Hence, he filed the instant case.
Petitioners Sps. Valenciano, on the other hand, claimed
that the ongoing construction was with the consent and conformity
of the DPWH and in fact the improvements found in the property
were introduced by the residents thereof, including its first
residents, William and Gloria Banuca, and not by respondent. The
premises on which petitioners Sps. Valenciano are constructing
their house were leveled after the earthquake in 1990 by the
Banuca spouses. Petitioners Sps. Valenciano are just starting the

construction because the permission was only given now by Gloria

Banuca.[6]
On 18 August 1998, petitioner filed before the MCTC of Tuba, Benguet, a
complaint for Forcible Entry with Prayer for Preliminary Mandatory Injunction with
Application for Issuance of a Temporary Restraining Order plus Damages. [7] The
complaint was amended on 27 August 1998. [8] Per Order dated 19 August 1998, a
Temporary Restraining Order (TRO) was issued ordering respondents to desist and
cease and refrain from continuing the construction of a house on the land in question.
[9]

On 27 August 1998, respondent spouses Juanito and Amalia Valenciano filed

their Answer with Opposition to the Prayer for Issuance of Writ of Preliminary
Injunction.[10] On 07 September 1998, they filed an Answer to the Amended
Complaint[11] to which petitioner filed a Reply.[12]
On 15 September 1998, the MCTC issued another TRO.[13]
The pre-trial order dated 6 November 1998 contained, among other things,
petitioners admission that he was temporarily not operating any business in the area,
and respondents admission regarding the issuance of Tax Declarations on the
property in dispute in petitioners name.[14]
Trial ensued. Petitioner presented Mariano Suyam and Tonsing Binay-an, two
of his former truck drivers from 1981 to 1985 in his business of hauling sand, gravel
and other aggregates at Riverside, Camp 3, Tuba, Benguet.
Mariano Suyam testified that sometime in 1981, petitioner caused the
construction of a private road leading to the Bued River from Kennon Road. He
added that petitioner constructed two houses, the first was located along the roadright-of-way of Kennon Road where respondents are now constructing their house,
while the second was located below the private road around 40 to 60 meters down
from Kennon Road. He explained that the first house was used for sleeping quarters
and resting center for laborers, while petitioner used the second one as his quarters.
He said William Banuca was hired as foreman in 1983 and that the latter and his
family stayed in the second house.
Tonsing Binay-an corroborated the testimony of Suyam as regards the two
houses constructed by petitioner and added that petitioner was the manager of
Salamander Enterprises and had a concession permit from the Bureau of Mines to
haul gravel and sand.
Petitioner testified that he is a lawyer-businessman formerly engaged in
trucking business, hauling sand and gravel, and operated under the name Salamander
Enterprises.[15] He narrated that while he was passing Kennon Road, he discovered

that a portion of the Bued River, Camp 3, Tuba Benguet, can be a potential source of
supplies for his business. Though the area was steep and deep, he scouted a place
where he can construct a road from Kennon Road to the Bued River. In the course of
cleaning the area, his workers noticed that the place had been tilled. A certain
Castillo Binay-an appeared informing him that he was the occupant of the site of the
proposed private road. After agreeing on the consideration, the former executed a
Deed of Waiver and Quitclaim[16] over the land in his favor.
Thereafter, the Office of the Highway District Engineer of Baguio, Ministry
of Public Highways (now Department of Public Works and Highways [DPWH])
issued a permit in favor of petitioner to extract construction materials at Camp 3,
Tuba, Benguet,[17] which was followed by the issuance on 1 October 1981 of
Commercial Permit No. 147 by the Office of the Mines Regional Officer, Mineral
Region No. 1, Bureau of Mines and Geo-Sciences (Bureau of Mines). [18] The
Commercial Permit, which was renewable every year, was last renewed in 1987.[19]
Based on the Deed of Waiver and Quitclaim executed by Castillo Binay-an,
petitioner was able to apply for, and was issued, a tax declaration over the land
covering one hectare. Tax Declaration No. 9540[20] dated 12 September 1983 was
issued to petitioner describing the land bounded on the North by Bued River, on the
South by Kennon Road, on the East by Kennon Road, and on the West by a Creek.
With the revision of the fair market value and assessed value of lands, Tax
Declaration No. 94-004-00327 dated 12 November 1994 was issued to him. [21] From
1983 up to 1998, petitioner has been regularly paying real property taxes over the
land.
Petitioner disclosed that in 1983, William Banuca applied for, and was
accepted, as foreman.[22] Due to the nature of his job, Banuca was permitted to stay
in the second house beside the private road. [23] Banuca now lives permanently in said
house after petitioner gave it to him. Petitioner revealed that the houses his former
laborers constructed were awarded to them as a kind gesture to them. As to the land
he occupied along the Kennon Road where the first house was erected, he claims that
same still belongs to him. This house, which his laborers and drivers used as a
resting area, was cannibalized and leveled, and the land over which it once stood was
taken possession by respondents who are now building their house thereon.
Gloria Banuca testified for respondents. She disclosed that it was she who
invited respondents to come and reside at Riverside, Camp 3, Tuba, Benguet. She
said she knew petitioner to be engaged in the sand and gravel business in Tuba,
Benguet, from 1981 to 1985, and that the latter stopped in 1985 and never returned to
haul sand and gravel at the Bued River. She claimed she never saw petitioner
introduce any improvements on the land he claimed he bought from Castillo Binayan, and that it was she and the other residents who introduced the existing
improvements.

She narrated that in 1983, she planted fruit-bearing trees in the area where
respondents were constructing their house which is located along the Kennon Roads
road-right-of-way, fronting petitioners property. After the earthquake of 1990, the
private road constructed by petitioner became impassable and it was she who hired
the equipment used to clear the same. She even leveled the area where respondents
were building their home. Based on the ocular inspection, she said this area is within
the 15-meter radius from the center of the road. This area, she claims, was sold to
her by the Spouses Jularbal. However, the agreement between them shows that what
was sold to her were the improvements near her house which was 40 meters down
from Kennon Road and the improvements along Kennon Road.[24]
Agustin Domingo next testified for respondents. He testified that in 1986,
upon the invitation of Gloria Banuca, he transferred his residence to sitio Riverside
because of its proximity to his place of work. He stayed there for good and even
buried his father near his house. He said that in 1990, the private road constructed
by petitioner was covered by boulders, soil and rocks, and it was Mrs. Banuca who
initiated the clearing of the road. Finally, he declared that since 1986, he never saw
petitioner introduce any improvement in the area.
Respondent Juanito Valenciano revealed that he is the cousin of Gloria
Banuca. He narrated that in 1984, he went to Riverside to see the latter whose
husband, William Banuca, was working as foreman of petitioner. At that time, the
lot under litigation was still a hill. It was Gloria Banuca who leveled the hill and told
him to construct his house there. Finding the place to be an ideal place to build his
house, he paid the BanucasP10,000.00 for the improvements.
He explained that before he started building his house, he sought the
permission of the Benguet District Engineer, DPWH, which the latter granted. In
August 1998, he received a notice [25] to stop and desist from continuing the
construction of a permanent one-storey house made of hollow blocks and cement
since the condition was only to utilize light materials. Thereafter, a letter dated 22
January 1999 was sent to him informing him that the temporary permit issued to him
for the improvement/utilization of a portion of the national road along Kennon Road
had been revoked for non-submission of the waiver as required by the Office of the
District Engineer and his non-compliance with the condition that no permanent
structures are to be constructed within the road-right-of-way. He, however, denied
receiving said letter.
Juan de Vera, a retired DPWH foreman, testified last for the respondents.
He claimed he witnessed the execution of the document [26] regarding the sale by
Adriano Jularbal to Gloria Banuca of improvements found near the house of the
latter in the amount of P1,000.00.
The MCTC found that what is being contested is the possession of a portion
of the road-right-of way of Kennon Road which is located in front of a parcel of land
that petitioner bought by way of Deed of Waiver and Quitclaim from Castillo Binay-

an. It held that petitioner had prior material possession over the subject land. It
ruled that the destruction of his house built thereon by the earthquake in 1990, and
later cannibalized without being reconstructed was not tantamount to abandonment
of the site by the petitioner because it was destroyed by a fortuitous event which was
beyond his control. It explained that his possession over the land must be recognized
by respondents who came later after the earthquake. It brushed aside respondents
allegation that the land in dispute was abandoned by the latter after he stopped
operating his sand and gravel business in 1985 and never returned anymore, and
when the house erected on it was destroyed during the 1990 earthquake, it was no
longer reconstructed and was subsequently leveled or demolished by Gloria Banuca.
However, it pronounced that respondents action to occupy the land was done in
good faith considering that their occupation of the land was with the assurance of the
seller (Gloria Banuca) and that they were armed with the permit issued by the
DPWH for him to construct his house thereon.
On 20 November 2000, the MCTC came out with its decision, the decretal
portion of which reads:
WHEREFORE PREMISES CONSIDERED, decision is
hereby rendered in favor of plaintiff, FRISCO DOMALSIN, and
against defendants, JUANITO VALENCIANO and AMALIA
VALENCIANO, with the following:
1.

Order to declare the injunction permanent.

2.

Order the plaintiff as the actual possessor of the lot

in question.

3.

Order the defendant(s) to vacate and deliver the

physical possession voluntarily of the disputed land
to plaintiff within 60 days from receipt of this
decision.

4.

Order defendant(s) to remove his structure within

from receipt of this decision.

5.

Order the defendant(s) to (sic) plaintiff the amount

of P10,000.00, as litigation expenses.

6.

Order defendant(s) to pay the cost of suit[27]

Respondents appealed the decision to the RTC.[28] In affirming the

decision in toto the RTC ratiocinated:

It may be well to consider that even after plaintiffs

business ceased operation, he religiously paid the taxes due
thereon.
Appellants theory that the plaintiff-appellee abandoned the
property does not sit well and finds no support in the record.
Notice that since 1985 up to mid-1990, the Banucas never laid
claim over the property taking into consideration that they were
already residents of the place. This only goes to show that they
acknowledged and respected the prior possession of the plaintiffappellee. Besides, what right has Gloria to cause the leveling of
the property destroying the natural contour thereof, to presume that
plaintiff-appellee abandoned it and to invite and allow other
persons to settle thereat? Absolutely none. Knowing fully well
that the plaintiff-appellee has prior possession of the property,
Glorias actions are unjustified, to say the least. Her consummated
act of leveling the property without the knowledge of the plaintiffappellee is viewed as a test to determine whether or not the latter is
still interested in the property. From then on until 1998 (but before
the construction), the Banucas still recognize the plaintiffs
possession. But as Gloria claims to have heard no word from the
plaintiff, she unilaterally declared that the place is now abandoned
as she invited and allowed the defendants to live and construct
their house thereat.
Contrary to the assertion of the appellants, there was no
abandonment simply because plaintiff-appellee continuously paid
the corresponding taxes due thereon and that he promptly objected
to the construction of the defendants-appellants house. These are
clear manifestations of his intention not to abandon the property.
Sad to say though that here is a former employer. By passing off
such property to be hers is so unkind, unfair and against social
order. It is very clear that the Banucas knew of the prior
possession of the plaintiff way back then so that they themselves
never personally build construction over the property. If they
honestly believe that they now own the land, why will they still
have to invite other people who are not their relatives to settle
thereat? Why the preference of strangers over relatives? The
Court does not believe that they did not receive any compensation
for having allowed strangers, the defendants included, to settle
on the land.
From all the foregoing, Gloria is clearly in bad faith. And
her being in bad faith must be corrected and if warranted, must be
meted appropriate penalty. If the Banucas are in bad faith, then the
appellants cannot have better rights either. The Banucas

transferred nothing to them. Defendants-appellants cannot even be

considered as builders in good faith. It must be noted that they
were prohibited by the plaintiff from going further but they ignored
it. They shall lose what was built (Art. 449, Civil Code). Again, if
the Banucas believe that they have an action or a right to deprive
the plaintiffs possession, why did they not invoke judicial
interference as required under Art. 536 of the same code?
Nonetheless, notwithstanding the fact of leveling without the
knowledge of the plaintiff-appellee, the same did not affect his
possession (Art. 537, Civil Code).[29]
Via a petition for review, respondents appealed to the Court of Appeals. The
Court of Appeals made a sudden turn-around and reversed the decision under
review. Its decision dated 20 August 2002 reads in part:
[T]here is a need to clarify a few things. What is undisputed are
the identity and nature of the property subject of the action for
forcible entry. The subject of the action concerns a portion of the
road-right-of-way along Kennon Road just above the private road
constructed by respondent. The problem, however, is that
petitioners Sps. Valenciano started constructing a house on the
same spot where a house belonging to respondent once stood.
Both parties are now asserting that they are entitled to the
possession of said lot. But the decision of the lower court seems to
imply that respondents right to possess the subject property stems
from his acquisition of the one-hectare property below it. That is
not the case.
We must emphasize that the subject of the deed of
quitclaim and waiver of rights of Castillo Binay-an was not the
road-right-of-way but the sloping terrain below it. This was the
property acquired by the respondent to have access to the sand and
gravel on the Bued River. It did not include the road-right-of-way.
As regards Gloria Banucass claims, the evidence show that her
agreement with Jularbal involved only the improvements near her
residence down the private road and not the road-right-of-way.
Since the subject property is a road-right-of-way, it forms part of
the public dominion. It is not susceptible to private acquisition or
ownership.
Prolonged occupation thereof, improvements
introduced thereat or payment of the realty taxes thereon will never
ripen into ownership of said parcel of land. Thus, what We have
are two parties, neither of which can be owners, only possessors of
the subject property. Beyond these two, only the government has a
better right to the subject property which right it may exercise at
any time. This bears emphasizing because if either party has

possessory rights to the subject property, it is not predicated on

ownership but only on their actual possession of the subject
property.

and cannot own the subject property, actual possession becomes

particularly important.[30]

xxxx
The case was disposed as follows:
There is no doubt that respondent had prior physical
possession of the subject property. He entered and acquired
possession of the subject property when he built his house thereon.
The house was destroyed during the 1990 earthquake and
respondent did not rebuild it. The mound on which it stood was
later leveled by Gloria Banuca and in 1998 petitioners Sps.
Valenciano began construction thereat. Petitioners Sps. Valenciano
claim there was abandonment, but the lower court ruled that
respondent did not abandon the subject property as he continued to
pay the realty taxes thereon and objected to petitioners Sps.
Valencianos construction. We believe, and so hold, that at this
point in time, it is immaterial whether or not there was
abandonment by respondent. The fact remains that Gloria Banuca
took possession of the subject property soon after the earthquake.
She leveled the mound and the ruins of respondents house, yet
respondent remained silent. Respondent objected only after
petitioners Sps. Valenciano started construction of the house on the
subject property. Respondent cannot now interpose an action for
forcible entry against petitioners Sps. Valenciano, which he should
have filed against Gloria Banuca, petitioners Sps. Valencianos
predecessor-in-interest. But more than a year had passed and his
right to do so lapsed. Thus, respondents prior possession is
material only as against Gloria Banuca and only within a period of
one year from the time she wrested possession of the property from
respondent.
We view with distate Gloria Banucas ingratitude toward
her husbands former employer. Her actions smack of the
proverbial hand being offered in aid but the person to whom it is
offered would rather have the whole arm instead. This is an
instance where it is the employees who commit injustice against
their employer. Nonetheless, petitioners Sps. Valenciano should
not suffer because of Gloria Banucas ingratitude for the former
came across the property in good faith.
But respondent is also reminded that he only has himself to
blame. His failure to assert his right for an unreasonable and
unexplained length of time allowed Gloria Banuca to wrest
possession from him. Especially in this case where they do not

WHEREFORE, in view of the foregoing, the petition is

GRANTED and the decision of the Municipal Circuit Trial Court
of tuba-Sablan dated November 20, 2000 as affirmed by the
Regional Trial Court on January 23, 2002 is hereby REVERSED
and SET ASIDE.[31]
The Motion for Reconsideration filed by petitioner was denied in a
resolution[32] dated 20 May 2003.
Petitioner is now before us seeking redress. He assigns the following as the
errors committed by the Court of Appeals:
I.
THE HONORABLE COURT OF APPEALS ERRED IN
HOLDING
THAT
PRIVATE
RESPONDENT
(NOW
PETITIONER) FRISCO DOMALSIN ABANDONED THE
PROPERTY SUBJECT OF THE LITIGATION.
II.
THE HONORABLE COURT OF APPEALS ERRED IN
REVERSING AND SETTING ASIDE THE DECISION OF THE
REGIONAL TRIAL COURT OF LA TRINIDAD, BENGUET,
BRANCH 63 WHICH AFFIRMED THE DECISION OF THE
MUNICIPAL CIRCUIT TRIAL COURT OF TUBA-SABLAN.
At the outset, it must be made clear that the property subject of this case is a
portion of the road-right-of way of Kennon Road which is located in front of a parcel
of land that petitioner bought by way of Deed of Waiver and Quitclaim from Castillo
Binay-an.[33] The admission[34] of petitioner in his Amended Complaint that
respondents started constructing a building within the Kennon Road road-right-ofway belies his claim that the lot in question is his.
In light of this exposition, it is clear that neither the petitioner nor the
respondents can own nor possess the subject property the same being part of the
public dominion. Property of public dominion is defined by Article 420 of the Civil
Code as follows:

ART. 420. The following things are property of public dominion:

(1)
Those intended for public use such as
roads, canals, rivers, torrents, ports and bridges
constructed by the State, banks, shores,
roadsteads, and other of similar character.
(2) Those which belong to the State, without
being for public use, and are intended for
some public service or for the development of
the national wealth.
Properties of public dominion are owned by the general public.[35] Public
use is use that is not confined to privileged individuals, but is open to the
indefinite public.[36] As the land in controversy is a portion of Kennon Road which
is for the use of the people, there can be no dispute that same is part of public
dominion. This being the case, the parties cannot appropriate the land for
themselves. Thus, they cannot claim any right of possession over it. This is clear
from Article 530 of the Civil Code which provides:
ART. 530. Only things and rights which are susceptible of
being appropriated may be the object of possession.
Notwithstanding the foregoing, it is proper to discuss the position of the
Court of Appeals for comprehensive understanding of the facts and the law involved.
Petitioner maintains that the Court of Appeals erred when it ruled that he
abandoned the land being disputed contrary to the rulings of the MCTC and RTC.
The MCTC found there was no abandonment of the land because the house erected
thereon was destroyed by a fortuitous event (earthquake), while the RTC ruled there
was no abandonment because petitioner paid taxes due on the land and that he
promptly objected to the construction of respondents house which are clear
manifestations of his intention not to abandon the property.
A reading of the decision of the Court of Appeals shows that it did not reverse
the two lower courts on the issue of abandonment. It merely declared that such issue
is not material in the resolution of the case at bar. It faulted petitioner for not
asserting his right for a long time allowing Gloria Banuca to wrest the possession of
the land in question from petitioner by leveling the house he built thereon and
pronounced that actual possession becomes important in a case where parties do not
and cannot own the land in question.
From the foregoing it appears that the Court of Appeals did not give weight or
importance to the fact that petitioner had prior physical possession over the subject

land. It anchored its decision on the fact that the parties do not and cannot own the
land and that respondents now have actual possession over it.
Ejectment proceedings are summary proceedings intended to provide an
expeditious means of protecting actual possession or right to possession of property.
Title is not involved. The sole issue to be resolved is the question as to who is
entitled to the physical or material possession of the premises or possession de facto.
[37]

The Court of Appeals erred when it preferred the present and actual
possession of respondents vis--vis the prior possession of petitioner on the ground
that the parties do not and cannot own the lot in question. Regardless of the actual
condition of the title to the property, the party in peaceable, quiet possession shall not
be thrown out by a strong hand, violence or terror. Neither is the unlawful
withholding of property allowed. Courts will always uphold respect for prior
possession. Thus, a party who can prove prior possession can recover such
possession even against the owner himself. Whatever may be the character of his
possession, if he has in his favor prior possession in time, he has the security that
entitles him to remain on the property until a person with a better right lawfully
ejects him.[38]
The fact that the parties do not and cannot own the property under litigation
does not mean that the issue to be resolved is no longer priority of possession. The
determining factor for one to be entitled to possession will be prior physical
possession and not actual physical possession. Since title is never in issue in a
forcible entry case, the Court of Appeals should have based its decision on who had
prior physical possession. The main thing to be proven in an action for forcible entry
is prior possession and that same was lost through force, intimidation, threat, strategy
and stealth, so that it behooves the court to restore possession regardless of title or
ownership.[39]
Inasmuch as prior physical possession must be respected, the Court of
Appeals should have ruled squarely on the issue of abandonment because it gave
precedence to the actual present possession of respondents. If, indeed, there was
abandonment of the land under consideration by petitioner, only then should
respondents be given the possession of the same since abandonment is one way by
which a possessor may lose his possession.[40]
Abandonment of a thing is the voluntary renunciation of all rights which a
person may have in a thing, with the intent to lose such thing. [41] A thing is
considered abandoned and possession thereof lost if the spes recuperandi (the hope
of recovery) is gone and the animus revertendi (the intention of returning) is finally
given up.[42]
In the case before us, we find that petitioner never abandoned the subject
land. His opposition to the construction of respondents house upon learning of the

same and the subsequent filing of the instant case are clear indicia of nonabandonment; otherwise, he could have just allowed the latter to continue with the
construction. Moreover, the fact that the house petitioner built was destroyed by the
earthquake in 1990, was never rebuilt nor repaired and that same was leveled to the
ground by Gloria Banuca do not signify abandonment. Although his house was
damaged by the earthquake, Gloria Banuca, the person who supposedly demolished
said house, had no right to do the same. Her act of removing the house and
depriving petitioner of possession of the land was an act of forcible entry. The entry
of respondents in 1998 was likewise an act of forcible entry.
The next question is: Was the action filed the correct one and was it timely
filed?
Well-settled is the rule that what determines the nature of the action as well
as the court which has jurisdiction over the case are the allegations in the complaint.
[43]
In actions for forcible entry, the law tells us that two allegations are mandatory
for the municipal court to acquire jurisdiction: First, the plaintiff must allege prior
physical possession of the property. Second, he must also allege that he was deprived
of his possession by any of the means provided for in Section 1, Rule 70 of the Rules
of Court.[44] To effect the ejectment of an occupant or deforciant on the land, the
complaint should embody such a statement of facts as to bring the party clearly
within the class of cases for which the statutes provide a remedy, as these
proceedings are summary in nature. The complaint must show enough on its face to
give the court jurisdiction without resort to parol evidence. [45]
A look at the Amended Complaint filed by petitioner clearly shows a case
for forcible entry. Petitioner alleged therein that he has been in possession of the
subject land for the last nineteen years and that respondents, in the first week of
August 1998, without his permission and consent, entered the land by means of
force, strategy and stealth and started the construction of a building thereon; and
upon being informed thereof, he requested them to stop their construction but
respondents refused to vacate the land forcing him to file the instant case to recover
possession thereof.
The Court of Appeals pronounced that petitioner cannot interpose an action
for forcible entry against respondents and that the same should have been filed
against Gloria Banuca. It added that the right to file against the latter had already
lapsed because more than a year had passed by from the time she wrestled
possession of the property from the petitioner.
We find such pronouncement to be flawed. An action of forcible entry and
detainer may be maintained only against one in possession at the commencement of
the action, and not against one who does not in fact hold the land. [46] Under Section
1,[47] Rule 70 of the Rules of Court, the action may be filed against persons
unlawfully withholding or depriving possession or any person claiming under them.
Considering that respondents are the ones in present actual possession and are

depriving petitioner of the possession of the land in question, it is proper that they be
the ones to be named defendants in the case. The fact that Gloria Banuca was
supposedly the one who first committed forcible entry when she allegedly
demolished the house of petitioner does not make her the proper party to be sued
because she is no longer in possession or control of the land in controversy.
As regards the timeliness of the filing of the case for forcible entry, we find
that same was filed within the one-year prescriptive period. We have ruled that
where forcible entry was made clandestinely, the one-year prescriptive period should
be counted from the time the person deprived of possession demanded that the
deforciant desist from such dispossession when the former learned thereof. [48] As
alleged by petitioner in the Amended Complaint, he was deprived of his possession
over the land by force, strategy and stealth. Considering that one of the means
employed was stealth because the intrusion was done by respondents without his
knowledge and consent, the one-year period should be counted from the time he
made the demand to respondents to vacate the land upon learning of such
dispossession. The record shows that upon being informed that respondents were
constructing a building in the subject land sometime in the first week of August
1998, petitioner immediately protested and advised the former to stop; but to no
avail. The one-year period within which to file the forcible entry case had not yet
expired when the ejectment suit was filed on 18 August 1998 with the MCTC.
Despite the foregoing findings, this Court finds that the MCTC and the
RTC, as well as the Court of Appeals, to be in error when they respectively declared
that petitioner and respondents to be entitled to the possession of the land in dispute.
The parties should not be permitted to take possession of the land, much more, claim
ownership thereof as said lot is part of the public dominion.
WHEREFORE, the foregoing considered, the instant petition is hereby
PARTIALLY GRANTED. Nonetheless, there being a finding that the subject
property is a part of the public dominion, of which neither party is entitled to own
nor possess, the decisions of the Court of Appeals dated 20 August 2002, the
Regional Trial Court of La Trinidad, Benguet, dated 23 January 2002, and the
Municipal Circuit Trial Court of Tuba-Sablan, Tuba, Benguet, dated 20 November
2000 are SET ASIDE. Respondents Juanito and Amalia Valenciano are ordered to
remove their structure on the subject land within sixty (60) days from receipt of this
decision, and to vacate and deliver the physical possession thereof to the Office of
the District Engineer, Benguet Engineering District, Department of Public Works and
Highways.
SO ORDERED.
MINITA V. CHICO-NAZARIO
Associate Justice

SUPREME COURT
Manila
THIRD DIVISION
DECISION
September 14, 1989
G.R. No. 76217
GERMAN MANAGEMENT & SERVICES, INC., petitioner,
vs.
HON. COURT OF APPEALS and ERNESTO VILLEZA, respondents.
G.R. No. L-76216
GERMAN MANAGEMENT & SERVICES, INC., petitioner,
vs.
HON. COURT OF APPEALS and ORLANDO GERNALE, respondents.
Alam, Verano & Associates for petitioner.
Francisco D. Lozano for private respondents.
FERNAN, C.J.:
Spouses Cynthia Cuyegkeng Jose and Manuel Rene Jose, residents of Pennsylvania,
Philadelphia, USA are the owners of a parcel of land situated in Sitio Inarawan, San
Isidro, Antipolo, Rizal, with an area of 232,942 square meters and covered by TCT
No. 50023 of the Register of Deeds of the province of Rizal issued on September 11,
1980 which canceled TCT No. 56762/ T-560. The land was originally registered on
August 5, 1948 in the Office of the Register of Deeds of Rizal as OCT No. 19,
pursuant to a Homestead Patent granted by the President of the Philippines on July
27, 1948, under Act No. 141.
On February 26, 1982, the spouses Jose executed a special power of attorney
authorizing petitioner German Management Services to develop their property
covered by TCT No. 50023 into a residential subdivision. Consequently, petitioner
on February 9,1983 obtained Development Permit No. 00424 from the Human
Settlements Regulatory Commission for said development. Finding that part of the
property was occupied by private respondents and twenty other persons, petitioner
advised the occupants to vacate the premises but the latter refused. Nevertheless,
petitioner proceeded with the development of the subject property which included
the portions occupied and cultivated by private respondents.
Private respondents filed an action for forcible entry against petitioner before the
Municipal Trial Court of Antipolo, Rizal, alleging that they are mountainside farmers
of Sitio Inarawan, San Isidro, Antipolo, Rizal and members of the Concerned
Citizens of Farmers Association; that they have occupied and tilled their
farmholdings some twelve to fifteen years prior to the promulgation of P.D. No. 27;
that during the first week of August 1983, petitioner, under a permit from the Office
of the Provincial Governor of Rizal, was allowed to improve the Barangay Road
at Sitio Inarawan, San Isidro, Antipolo, Rizal at its expense, subject to the condition
that it shag secure the needed right of way from the owners of the lot to be affected;
that on August 15, 1983 and thereafter, petitioner deprived private respondents of
their property without due process of law by: (1) forcibly removing and destroying
the barbed wire fence enclosing their farmholdings without notice; (2) bulldozing the
rice, corn fruit bearing trees and other crops of private respondents by means of

force, violence and intimidation, in violation of P.D. 1038 and (3) trespassing,
coercing and threatening to harass, remove and eject private respondents from their
respective farmholdings in violation of P.D. Nos. 316, 583, 815, and1028.[[1]]
On January 7,1985, the Municipal Trial Court dismissed private respondents
complaint for forcible entry.[[2]] On appeal, the Regional Trial Court of Antipolo,
Rizal, Branch LXXI sustained the dismissal by the Municipal Trial Court.[[3]]
Private respondents then filed a petition for review with the Court of Appeals. On
July 24,1986, said court gave due course to their petition and reversed the decisions
of the Municipal Trial Court and the Regional Trial Court.[[4]]
The Appellate Court held that since private respondents were in actual possession of
the property at the time they were forcibly ejected by petitioner, private respondents
have a right to commence an action for forcible entry regardless of the legality or
illegality of possession.[[5]] Petitioner moved to reconsider but the same was denied
by the Appellate Court in its resolution dated September 26, 1986.[[6]]
Hence, this recourse.
The issue in this case is whether or not the Court of Appeals denied due process to
petitioner when it reversed the decision of the court a quo without giving petitioner
the opportunity to file its answer and whether or not private respondents are entitled
to file a forcible entry case against petitioner.[[7]]
We affirm. The Court of Appeals need not require petitioner to file an answer for due
process to exist. The comment filed by petitioner on February 26, 1986 has
sufficiently addressed the issues presented in the petition for review filed by private
respondents before the Court of Appeals. Having heard both parties, the Appellate
Court need not await or require any other additional pleading. Moreover, the fact that
petitioner was heard by the Court of Appeals on its motion for reconsideration
negates any violation of due process.
Notwithstanding petitioners claim that it was duly authorized by the owners to
develop the subject property, private respondents, as actual possessors, can
commence a forcible entry case against petitioner because ownership is not in issue.
Forcible entry is merely a quieting process and never determines the actual title to an
estate. Title is not involved.[[8]]
In the case at bar, it is undisputed that at the time petitioner entered the property,
private respondents were already in possession thereof . There is no evidence that the
spouses Jose were ever in possession of the subject property. On the contrary, private
respondents peaceable possession was manifested by the fact that they even planted
rice, corn and fruit bearing trees twelve to fifteen years prior to petitioners act of
destroying their crops.
Although admittedly petitioner may validly claim ownership based on the
muniments of title it presented, such evidence does not responsively address the
issue of prior actual possession raised in a forcible entry case. It must be stated that
regardless of the actual condition of the title to the property, the party in peaceable
quiet possession shall not be turned out by a strong hand, violence or terror.[[9]] Thus,
a party who can prove prior possession can recover such possession even against the
owner himself. Whatever may be the character of his prior possession, if he has in

his favor priority in time, he has the security that entitles him to remain on the
property until he is lawfully ejected by a person having a better right by accion
publiciana or accion reivindicatoria.[[10]]
Both the Municipal Trial Court and the Regional Trial Court have rationalized
petitioners drastic action of bulldozing and destroying the crops of private
respondents on the basis of the doctrine of self-help enunciated in Article 429 of the
New Civil Code. 11 Such justification is unavailing because the doctrine of self-help
can only be exercised at the time of actual or threatened dispossession which is
absent in the case at bar. When possession has already been lost, the owner must
resort to judicial process for the recovery of property. This is clear from Article 536
of the Civil Code which states, (I)n no case may possession be acquired through
force or intimidation as long as there is a possessor who objects thereto. He who
believes that he has an action or right to deprive another of the holding of a thing,
must invoke the aid of the competent court, if the holder should refuse to deliver the
thing.
WHEREFORE, the Court resolved to DENY the instant petition. The decision of the
Court of Appeals dated July 24,1986 is hereby AFFIRMED. Costs against petitioner.
SO ORDERED.
Bidin and Cortes, JJ., concur.
Gutierrez, Jr., J., concurs in the result.
Feliciano, J., is on leave.