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REPUBLIC OF THE PHILIPPINES MUNICIPAL TRIAL COURT PROVINCE OF TARLAC THIRD JUDICIAL REGION

Andrea Mae V. Manuzon, Represented by her Attorney-in-fact, Marhiel Calizo CIVIL CASE NO. 12345 For FORCIBLE ENTRY and DAMAGES with Preliminary Mandatory Injunction or Temporary Restraining Order Plaintiff -versusAlthea Acebes, Kristella Agcoaoli and all other persons Claiming rights under them,

Defendants x--------------------------------------------------------x

POSITION PAPER (FOR PRELIMINARY MANDATORY INJUNCTION)

WITH ALL DUE RESPECT TO THE HONORABLE COURT. COMES NOW the PLAINTIFF, by and through the undersigned counsel, unto her Honorable Court, in support for the issuance of the office of a WRIT OF PRELIMINARY MANDATORY INJUNCTION most respectfully states that: 1 of 12 Position Paper Civil Case No. 12345 Manuzon vs. Acebes et, al.

PREFATORY STATEMENT

The only issue in entry cases is the physical or material possession of real property possession de facto, not possession de jure. Only prior physical possession, not title, is the issue. If ownership is raised in the pleadings, the court may pass upon such question, but only to determine the question of possession. The ownership claim of defendants upon the land is based on the evidence they presented. Their evidence, however, did not squarely address the issue of prior possession. Even if they succeed in proving that they are the owners of the land, the fact remains that they have not alleged or proved that they have not alleged or proved that they physically possess it by virtue of such ownership. On the other hand, plaintiff prior possession of the land was not disputed by the CA, which merely described is as usurpation.

PRELIMINARY STATEMENT OF FACTS AND NATURE OF THE CASE

This is an action for EJECMENT (Forcible Entry) with an urgent prayer for the issuance of Writ of preliminary mandatory injunction issue to restore plaintiff in possession of the Lot 0214. This is an anchored on the act of defendants in entering the property owned and in possession of plaintiff without the latters consent, with force, threat, and intimidation upon the person of plaintiffs Attorney-in-fact and the latters companions, and despite the fact that defendants are fully aware that the subject lot is owned and possessed by plaintiff Andrea Mae V. Manuzon as evidenced by Tax Declaration No. 009087.

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THE PARTIES AND THEIR RESPECTIVE ADDRESSES

1. Plaintiff is represented by her Atty-in-fact, pursuant to a special power of Attorney executed and acknowledge before Notary Public, and she is of legal age, single, Filipino citizen and a resident of Tarlac, but for purposes of this suit, notices, orders, and processes of the Honorable Court be furnished the undersigned counsel in the office address indicated below his name: 2. Defendants and all the other defendants are all of legal ages, married, Filipinos, and with residence of Tarlac, where they may be served with summons and other court processes;

FACTS OF THE CASE

3. Plaintiff is the co-owner of Lot 0214, with an area of 14,000 square meters, situated in Iba San Jose, Tarlac City, Philippines, covered by Tax Declaration No. 009087. 4. On April 26, 1997, plaintiff passed by said Lot 0214 on his way to San Jose Public Market and he noticed persons who forcibly entered said Lot 10877 by destroying the fence and started erecting a structure thereon. 5. When plaintiff got near, defendants and their workers threatened him with harm should he interfere with their work. 6. Plaintiff requested defendants and their workers to stop the construction of a structure inside the said Lot, but defendants and their workers refused to stop their construction. Then Plaintiff reported the matter to the Government Authorities of San Jose, Tarlac City and requested assistance in stopping said construction undertaken by defendants inside the said Lot of Plaintiff. 3 of 12 Position Paper Civil Case No. 12345 Manuzon vs. Acebes et, al.

7. That the Municipal Engineer together with some policemen of San Jose, Tarlac City, went to the place where the Lot is situated and they stopped the construction undertaken by defendants. 8. However, on the succeeding days, defendants continued with construction of the structure inside plaintiffs Lot, despite plaintiffs vehement protest and 9. That construction undertaken by defendants inside plaintiffs Lot is without the knowledge and consent of neither plaintiff nor his co-owners. 10. Plaintiff brought the matter before the Barangay Authorities for conciliation, but no settlement was arrived at the Barangay Authorities, and 11. That plaintiff has been compelled by defendants to litigate to enforce his rights and to engage the services of counsel for the sum of 20,000. 12. That the reasonable compensation for the use and occupation by defendants of plaintiffs said Lot 0214 is 15,000 per month.

ALLEGATIONS FOR THE ISSUANCE OF THE WRIT OF PRELIMINARY MANDATORY INJUNCTION

13. That Plaintiff hereby reproduced all the allegations of the preceding paragraphs insofar as they are material to issuance of the writ of preliminary mandatory injunction. 14. That under the provisions of Article 539 of the Civil Code of the Philippines and Section 3, Rule 70, Revised Rules of Court, plaintiff should be restored to the possession of said Lot 0214.

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15. That plaintiff is ready, able and willing to post a bond to be fixed by this Honorable Court to answer for any and all damages in the event that the Honorable Court finally adjudge that plaintiff is entitled thereto FACTS IN SUPPORT OF THE ISSUNACE OF A WRIT OF PRELIMINARY MANDATORY INJUNCTION

16. That because of the destroying of the fence and started erecting a structure thereon committed by the above named defendants, plaintiff and her agents are now being continuously deprived and enjoined of the use and enjoyment of the premises, and their continued deprivation has caused plaintiff to be dispossessed of the premises and their plans to further improve the same has been delayed and denied by the harm being physically and actually committed by the above named defendants, such that even the coheirs of plaintiff Andrea Mae V. Manuzon are likewise denied access thereto; 17. That the area being illegally occupied by defendants causing the dispossession of plaintiff and her agents, is among others, within the following lot, to wit: Lot 0214 with an area of more or less 14,000 square meters Covered by Tax Declaration No. 009087 18. That Lot 10877 which is covered by Tax Declaration No. 009087 of the Registry of Deeds of the Province of Tarlac in the name of Andrea Mae V. Manuzon, where a road has been introduced by plaintiff has been destroyed the blocked by defendants in the upper and lower portion with a fence, while the rest, as above-mentioned is being illegally occupied by defendants. 19. That the act of defendants in destroying the fence to enter the said lot has deprived plaintiff and her agents block to and from the property of plaintiff;

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20. That the acts resulting to the dispossession of plaintiff over the subject lot is continuing, and if defendants are not stopped from further introducing improvements thereto or if not restrained from continuously occupying the premises, plaintiff will later be completely dispossessed of the premises. ISSUES WHETHER OR NOT PLAINTIFF IS ENTITLED TO RECOVER POSSESSION THE SUBJECT PROPERTY WHETHER OR NOT THE COMPLAINT FILED BY PLAINTIFF TO DEFENDANTS MAY BE DISMISSED FOR LACK OF CAUSE OF ACTION AND JURISDICTION WHETHER OR NOT THE MTC HAS A JURISDICTION OVER THE CASE

DISCUSSIONS

1. On the first issue: THERE PLAINTIFF IS ENTITLED TO RECOVER POSSESSION OF THE SUBJECT PROPERTY The application for temporary restraining order and/or should be granted as there is an irreparable injury to be sustained by plaintiff. This is an action for forcible entry. Plaintiff is being displaced by defendants without defendants awaiting the final disposition of the main action for forcible entry. The Supreme Court consistently stressed in a long line of cases, thus: The very foundation of the jurisdiction to issue writ of injunction rests in the existence of a cause of action and in the probability of irreparable injury, in adequacy of 6 of 12 Position Paper Civil Case No. 12345 Manuzon vs. Acebes et, al.

pecuniary compensation and the prevention of the multiplicity of suits. Where facts are not shown to bring the case within these conditions, the relief of injunction should be refused. For the court to issue a writ of preliminary injunction, the petitioner was burdened to establish the following: (1) a right in esse or a clear and unmistakable right to be protected; (2) a violation of that right; (3) that there is an urgent and permanent act and urgent necessity for the writ to prevent serious damage. Thus, in the absence of a clear legal right, the issuance of the injunctive writ constitutes a grave abuse of discretion. Where the plaintiffs right is a doubtful or disputed, injunction is not proper. Injunction is a preservative remedy aimed at protecting substantial rights and interests. It is not designed to protect contingent or future rights. The possibility of irreparable damage without proof of adequate existing rights is not a ground for injunction.

In the case at bar, Plaintiff Andrea Mae V. Manuzon, is clearly in possession of the premises. She had improvements prevailing thereto, including structures and fences, she has a right to be protected and respected and that involves its use and enjoyment of the premises and its fruits. Her possession is presumed to be in good faith and such possession has to be respected unless finally proven otherwise in the Courts of Law.

2. On the second issue: THE PLAINTIFF HAS A VALID RIGHT OVER THE SUBJECT PROPERTY The complaint against the defendants cannot be set aside and dismissed. Because the lot subject matter of the above-entitled case is in no doubt covered by transfer certificates of title in the name of plaintiff with the registry of deeds of the Province of Tarlac. The said

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lot is verified and validated to be consistent with the Title by the Tax Declaration No. 009087. Plaintiff has been in possession of the subject property. Defendants, in their answer contended that plaintiff is not a co-owner of the subject property, that it being owned by the government, as said property is a public land. Defendants also argued that it is the Department of Agrarian Reform property, being an agricultural land, is within the administration and disposition of the Department of Agrarian Reform which will award it to qualified beneficiaries such as defendants. The lot in question is now under excavation, destruction, and occupation by the defendants. The right of plaintiff has been violated. She is now being unreasonably denied of its enjoyment and possession, a right that is protected by law, it should be noted that it is a established jurisprudence in ejectment cases that the legal right thereto is not essential to the possessors cause of action for no one may take the law into his hands and forcibly eject another or deprive her of her possession by stealth even if her title thereto or actually disputed in another case. In Lopez vs. Hon. Santiago (L-41889, April 25, 1960) it was said that Public interest, public policy and public order demand that the party in peaceful possession of the land, regardless of whether it is private or is part of the public domain, be not ousted therefrom by means of force, violence, or intimidation, regardless of the quality of his alleged right to the possession thereof, and that whoever claims to have a better title or right thereto should seek from the proper authorities the legal remedies established therefore instead of taking the law into their hands; Defendants, even assuming that they are the owners, could not simply take possession of the property by putting the law into their hands. They have to go to court and utilize the courts of law in enforcing their rights, if they have any. The Supreme Court said in a related case, thus:

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We stress that the issue of ownership in ejectment cases is to be resolved only when it is intimately intertwined with the issue of possession, to such an extent that the question of who had prior possession cannot be determined without ruling on the question of who the owner of the land is. No such intertwinement has been shown in the case before us. Since defendants claim of ownership is not being made in order to prove prior possession, the ejectment court cannot intrude or dwell upon the issue of ownership. Granting that plaintiff illegally entered into and occupied the property in question, defendants had no right to take the law into their own hands and summarily of forcibly eject the occupants therefrom. Verify, even if plaintiff were mere usurpers of the land owned by public domain, still they are entitled to remain on it until they care lawfully ejected therefrom. Under appropriate circumstances, defendants may file, other than an ejectment suit, an accion publicianaa plenary action intended to recover the better right to possess; or an accion reivindicatoriaan action to recover ownership of real property. The thing to be proven in an action for forcible entry is prior material possession, and that the same was lost through force, intimidation, threat, strategy or stealth, so that it behooves the court to restore possession regardless of title or ownership. The Supreme Court said in the case of Dizon vs. Concina, et al., (30 SCRA 897), that where a person supposes himself to be the owner of a piece of land and desires to vindicate his

ownership against the person actually in possession it is incumbent upon him to institute an action to this end in a court of competent jurisdiction; and he cannot be permitted, by invading the property and excluding the actual possessor to place upon the latter the burden of instituting to try the property right. This is exactly what happened in the case; defendants invaded the property and excluded the plaintiff who is in actual possession of the subject lot. The invasion is not merely eminent but was actual with the issue of force and intimidation. The destroying of the fence and starting to erect a structure thereon by defendants are all recent. 9 of 12 Position Paper Civil Case No. 12345 Manuzon vs. Acebes et, al.

3. On the third Issue: THE MUNICIPAL TRIAL COURT HAS A JURISDICTION OVER EJECTMENT CASES. The Municipal Trial Court can rule on forcible entry cases, this Honorable Court is subject to answer for any and all damages of the plaintiff and that the Honorable Court is to rule over this case of forcible entry and that plaintiff is entitled thereto. The Municipal Trial Court therefore has a jurisdiction to regulate over the said ejectment case. P R A Y E R WHEREFORE, it is respectfully prayed that after the filing of the case and upon posting of the bond to be fixed by this Honorable Court, a writ of preliminary mandatory injunction issue to restore plaintiff in possession of said Lot 0214 and be immediately issued prohibiting the above-named defendants from intruding into the premises and further order defendants to discontinue the construction over the said premises of the plaintiff. Other reliefs just and equitable under the premises are likewise prayed for. Province of Tarlac, for Iba San Jose, Philippines, 14th of September, 2011.

MAE ANN YUZON BADUA Counsel for Plaintiff PTR No. 1234567,-03-31-11, Tarlac IBP No. 021412, 03-31-11, Tarlac MCLE COMPLIANCE NO. 111-0000407; May 10, 2008 BADUA AND PARTNERS LAW OFFICES Room 14, 3RD Floor, Lopez Building, San Josel, Tarlac City

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The Clerk of Court Municipal Trial Court of Tarlac City Third Judicial Region Tarlac, Tarlac City

Greetings! Please submit the above-mentioned Position Paper for the consideration of this Honorable Court immediately upon receipt thereof.

Copy furnished by registered mail: Althea Acebes et, al. San Jose, Tarlac

Atty. Mae Ann Y. Badua

EXPLANATION

A copy of this pleading has been furnished to defendants by way of registered mail due to distance and for lack of office personnel to effect personal service.

Atty. Mae Ann Y. Badua

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