VI. Possession except in a direct proceeding.
Thus, issues as to the validity of the respondents’ title can only be
G.R. No. 199448. November 12, 2014.
 
ROLANDO S. ABADILLA, JR., petitioner, vs. SPOUSES BONIFACIO P. OBRERO
and BERNABELA N. OBRERO, respondents.
Remedial Law; Civil Procedure; Appeals; Petition for Review on Certiorari; It is a well-
settled rule that in a petition for review on certiorari under Rule 45, the scope of the Supreme
Court’s (SC’s) judicial review of decisions of the Court of Appeals (CA) is generally confined only
to errors of law; questions of fact are not entertained as the SC is not a trier of facts.—It is a
well-settled rule that in a petition for review on certiorari under Rule 45, the scope of the Court’s
judicial review of decisions of the CA is generally confined only to errors of law; questions of fact
are not entertained as the Court is not a trier of facts. Observably, the issues raised by the
petitioner involve factual matters which were already evaluated by the courts a quo in
determining who, between him and the respondents is entitled to the subject land’s
possession de facto. Following the above cited rule, it is beyond the Court’s jurisdiction to
reexamine the factual findings of the RTC as affirmed by the CA regarding the veracity and
sufficiency of the proofs of ownership and right of possession respectively submitted by the
parties. They are issues of fact which cannot be passed upon by the Court as it is not duty-
bound to analyze and weigh again the evidence considered in the proceedings below.
Same; Special Civil Actions; Ejectment; Ejectment proceedings are summary
proceedings intended to provide an expeditious means of protecting actual possession or right
to possession of property.—“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 who is entitled to the physical or material
possession of the premises or possession de facto.” “Issues as to the right of possession or
ownership are not involved in the action; evidence thereon is not admissible, except only for the
purpose of determining the issue of possession.”
Same; Same; Same; Where the parties to an ejectment case raise the issue of
ownership, the courts may pass upon that issue but only to determine who between the parties
has the better right to possess the property.—Where the parties to an ejectment case raise the
issue of ownership, the courts may pass upon that issue but only to determine who between the
parties has the better right to possess the property. As such, any adjudication of the ownership
issue is not final and binding; it is only provisional, and not a bar to an action between the same
parties involving title to the property.
Same; Certificate of Titles; As between the petitioner’s Deed of Absolute Sale and the
respondents’ Transfer Certificate of Title (TCT) No. T-38422, the latter must prevail. A certificate
of title is evidence of indefeasible and incontrovertible title to the property in favor of the person
whose name appears therein.—As between the petitioner’s Deed of Absolute Sale and the
respondents’ TCT No. T-38422, the latter must prevail. A certificate of title is evidence of
indefeasible and incontrovertible title to the property in favor of the person whose name appears
therein. “[A] title issued under the Torrens system is entitled to all the attributes of property
ownership, which necessarily includes possession.” Hence, as holders of the Torrens title over
the subject land, the respondents are entitled to its possession.
Same; Same; A Torrens certificate of title cannot be the subject of collateral attack.—
Questions on the validity of a Torrens title are outside the jurisdiction and competence of the trial
court in ejectment proceedings which are limited only to the determination of physical
possession. This is in consonance with the settled doctrine that questions relating to the validity
of a certificate of title during ejectment proceedings are deemed and proscribed as collateral
attack to such title. A Torrens certificate of title cannot be the subject of collateral attack. The title
represented by the certificate cannot be changed, altered, modified, enlarged, or diminished
definitively resolved in a direct proceeding for cancellation of title before the RTCs.
Same; Special Civil Actions; Forcible Entry; It remains undisputed that the petitioner and
his men unlawfully entered the land, enclosed it with barbed wire fence, destroyed the
improvements thereon and excluded the respondents therefrom. These actions necessarily
imply the use of force which is remedied by the herein proceedings for ejectment.—Indeed, the
petitioner failed to show any competent and convincing evidence of possession or act of
dominion in contrast to the overwhelming proof of actual possession and occupation proffered
by the respondents. Consequently, it is indubitable that the respondents, as registered owners,
are entitled to and must be restored to the physical possession forcibly wrested from them by
the petitioner. It remains undisputed that the petitioner and his men unlawfully entered the land,
enclosed it with barbed wire fence, destroyed the improvements thereon and excluded the
respondents therefrom. These actions necessarily imply the use of force which is remedied by
the herein proceedings for ejectment.
REYES, J.:
 
This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court
seeking to annul and set aside the Decision  dated February 28, 2011 of the Court of
Appeals (CA) in C.A.-G.R. S.P. No. 110689 affirming the Decision dated September
9, 2009 of the Regional Trial Court (RTC) of Laoag City, Branch 65, in Civil Case No.
14522-65 ordering Rolando S. Abadilla, Jr. (petitioner) to, inter alia,  vacate a certain
parcel of land in favor of Spouses Bonifacio P. Obrero (Bonifacio) and Bernabela N.
Obrero (respondents), and thus reversing the Decision dated October 17, 2008 of the
Municipal Trial Court in Cities (MTCC) of Laoag City, Branch 2, in Civil Case No.
3329 which dismissed the respondents’ complaint for forcible entry.
The Facts
 
In their complaint for forcible entry filed before the MTCC on October 1, 2007, the
respondents alleged that they are the registered owners of Lot No. 37565, Psd 01-
065731, situated at Barangay 37, Calayab, Laoag City (subject land) and covered by
Transfer Certificate of Title (TCT) No. T-38422 issued on July 3, 2007. Erected on the
land are various improvements utilized for residential and business purposes.
 On September 22, 2007, the petitioner, with the aid of armed men and hireling,
forcibly fenced the perimeter of the said parcel of land with barbed wire. The
petitioner and his men also intimidated the respondents and their customers and
destroyed some of the improvements on the land.
For the alleged acts of the petitioner, the respondents sought indemnification for
attorney’s fees as actual damages, moral damages, and exemplary damages. The
respondents also sought the issuance of a preliminary mandatory injunction to
preserve the last, actual, peaceable status of the parties before the controversy.
In his Answer, the petitioner denied the acts imputed to him. He claimed that he,
along with the other legal heirs of his father, Rolando Abadilla, Sr. (Abadilla, Sr.), are
the real owners and actual, lawful possessors of the subject land. The respondents
conveyed the land to the petitioner’s father in 1991 through a Deed of Absolute Sale.
On June 13, 1996, Abadilla, Sr. was ambushed and killed. In that same year, the
petitioner and his coheirs fenced the subject land as safety measure since they all
reside in Metro Manila and seldom visit Ilocos Norte where the land is located. They
left a caretaker to oversee the subject land and the other properties of Abadilla, Sr. in
that province.
Despite knowing that they are no longer the owners of the subject land, the
respondents have, many times, maliciously attempted to remove and destroy the
fence/enclosures on the subject land. Every time they did so, the petitioner and his
coheirs caused the reconstruction or repair of the fence. The respondents also
surreptitiously built a concrete structure on the land and used the same for dwelling
purposes.
Sometime in 2007, the petitioner received reports that the respondents have
again removed the fence on the subject land and that they were also offering it for
sale. The petitioner, thus, decided to replace the ruined enclosure with stronger
materials and put up signs declaring that the enclosed property is owned by the heirs
of Abadilla, Sr.
The petitioner averred that the complaint failed to state a cause of action because
the respondents failed to show that they were deprived of possession through acts
amounting to force, intimidation, threat, strategy or stealth. Also, they cannot validly
claim to have been dispossessed because they are still actually residing on the
subject land. The petitioner also questioned the jurisdiction of the MTCC over the
nature of the case arguing that any claim of dispossession should be reckoned from
1996, when the petitioner first fenced the subject land or 12 years before the
complaint was actually instituted by the respondents.
The petitioner added that the subject land was formerly the subject of a
Homestead Patent Application in the name of one Ernesto Palma (Palma). The
respondents, however, through illegal machinations, made Palma sign a quitclaim in
their favor. Palma thereafter instituted a criminal case against the respondents for
falsifying his signature in the purported quitclaim. To safeguard his and his coheirs’
ownership of the subject land, the petitioner purchased it from the heirs of Palma on
October 29, 2007.
The petitioner attacked the validity of the respondents’ TCT and alleged that it
was irregularly preceded by an Original Certificate of Title (OCT) in the name of
Airways Development Corporation (ADC).
The petitioner also counterclaimed for damages and attorney’s fees and opposed
the respondents’ application for a writ of preliminary injunction on the ground that it
will be an inequitable prejudgment of the main case.
Despite notice, the respondents failed to attend the hearings set for their
application for a preliminary mandatory injunction. Consequently, their application
was declared withdrawn in the MTCC Order dated June 3, 2008. Preliminary
conference was forthwith conducted wherein the respondents’ counsel admitted that
the signature above the typewritten name Bonifacio Obrero in the 1991 Deed of
Absolute Sale with Abadilla, Sr. was the signature of herein respondent Bonifacio.
Thereafter, the parties submitted their respective position papers and supporting
documents.
In their position paper, the respondents clarified that the sale between them and
Abadilla, Sr. did not push through. It was never consummated and the 1991 Deed of
Absolute Sale was never notarized. To bolster such claim, they attached the affidavit
of Engineer Rodolfo Jose, their agent. The respondents claimed that the numerous
trees and concrete structures on the subject land are physical evidence of their
possession which cannot be overcome by the petitioner’s bare allegations.
The respondents further disclosed that they have filed a petition before the RTC
praying for the issuance of a writ of preliminary mandatory injunction and for a
judgment ordering the petitioner to leave the premises and remove the barbed wire
fence and bamboo posts inside the subject land.
The petitioner pointed out respondent Bonifacio’s admission during the
preliminary conference and argued that it proves Abadilla Sr.’s earlier possession of
the subject land and consequently the cessation of the respondents’ ownership and
possession upon their sale thereof.
 
Ruling of the MTCC
 
In a Decision dated October 17, 2008, the MTCC dismissed the complaint and the
counterclaim. In finding the complaint unmeritorious, the MTCC held that respondent
Bonifacio’s admission confirmed that he and his wife indeed sold the land in
December 1991 to Abadilla, Sr. Thus, ownership and possession of the land was
transferred to him and then to the petitioner and his coheirs in 1996. The MTCC
further held that the complaint is actually an accion reivindicatoria over which it had
no jurisdiction. The MTCC judgment was disposed thus:
WHEREFORE, premises considered, the instant case is
hereby DISMISSED. The counterclaim of the [petitioner] is likewise DISMISSED.
No pronouncement as to costs.
SO ORDERED.
Ruling of the RTC
The respondents appealed to the RTC of Laoag City, Branch 65, which, in a
Decision dated September 9, 2009, disagreed with the findings of the MTCC.
After a scrutiny and assessment of the parties’ evidence of ownership to support
their respective claims of possession, the RTC found the respondents’ asseverations
more credible.
The 1991 Deed of Absolute Sale between the respondents and Abadilla, Sr. was
found of no force and effect for lack of consideration.
The respondents were found to have exercised acts of dominion over the subject
land since 1991 by establishing their residence thereon, declaring the same for
taxation purposes, paying the corresponding realty taxes, planting trees and building
concrete structures.
The damages for which the parties claimed indemnification were denied for being
unsubstantiated. Accordingly, dispositive portion of the RTC decision read:
WHEREFORE, in the light of the foregoing, the Court finds for the
[respondents] and against the [petitioner], and hereby renders judgment, granting
 the appeal, and reversing, setting-aside [sic] the appealed Decision of the court a
quo, ordering the following:
Ordering the [petitioner] and his representatives, heirs and assigns, and all
who claim title/possession under him, to totally and fully vacate the premises of
the subject land; restore possession fully and absolutely to the [respondents] as
well as to desist absolutely and perpetually from molesting the possession of the
[respondents] over the property until such time that the issue of ownership may
have been resolved at the proper forum, and in the event that the [petitioner]
prevails thereon; and
Ordering the [petitioner] to remove or demolish the fences that they have
constructed on the subject land.
Without costs.
SO ORDERED.
Ruling of the CA
Feeling aggrieved, the petitioner sought recourse before the CA, which sustained
the findings of the RTC and dismissed the petitioner’s appeal in a Decision dated
February 28, 2011, thus:
WHEREFORE, the petition is DISMISSED without prejudice to the filing by
either party of an action in the proper forum regarding the ownership of the
property involved. The Decision dated 9 September 2009 of the Regional Trial
Court, Branch 65, Laoag City in Civil Case No. 14522-65 (MTCC Civil Case No.
3329) is AFFIRMED. No costs.
SO ORDERED.
When his motion for reconsideration was denied in the CA Resolution dated
November 23, 2011, the petitioner interposed the herein petition ascribing the
following errors to the CA, to wit:
THE [CA] COMMITTED REVERSIBLE ERROR IN RULING THAT THE MATTER
OF FORUM SHOPPING HAS BEEN MOOTED BY THE DECISION OF THE
RTC-BR. 14, LAOAG CITY, DISMISSING CIVIL CASE NO. 14371-14;
THE [CA] COM[M]ITTED REVERSIBLE ERROR IN HOLDING THAT THE
UNILATERAL 1991 DEED OF SALE IS INVALID AND INEXISTENT DESPITE
THE ACKNOWLEDGMENT OF THE SAME BY THE RESPONDENT VENDOR;
 
THE [CA] COMMITTED REVERSIBLE ERROR IN DISREGARDING THE
IMPORT OF THE FACT THAT RESPONDENT BONIFACIO OBRERO IS
ACCUSED OF FALSIFYING THE DEED OF [QUITCLAIM] AND WAIVER IN A
CRIMINAL CASE PENDING IN COURT; and
THE [CA] COMMITTED REVERSIBLE ERROR IN CONSCIOUSLY
DISREGARDING THE DECISIONS IN CIVIL CASE NOS. 14371-14 (RTC-BR.
14) AND 3367 (MTCC-BR. 01).
Ruling of the Court
The petition is devoid of merit.
Preliminary Considerations
It is a well-settled rule that in a petition for review on certiorari under Rule 45, the
scope of the Court’s judicial review of decisions of the CA is generally confined only
to errors of law; questions of fact are not entertained as the Court is not a trier of
facts.
Observably, the issues raised by the petitioner involve factual matters which were
already evaluated by the courts a quo in determining who, between him and the
respondents is entitled to the subject land’s possession de facto. Following the above
cited rule, it is beyond the Court’s jurisdiction to reexamine the factual findings of the
RTC as affirmed by the CA regarding the veracity and sufficiency of the proofs of
ownership and right of possession respectively submitted by the parties. They are
issues of fact which cannot be passed upon by the Court as it is not duty-bound to
analyze and weigh again the evidence considered in the proceedings below.
Even if the Court were to reexamine the records and consider this case as an
exceptional circumstance in view of the conflicting conclusion reached by the MTCC,
the Court, nevertheless, finds no reversible error in the assailed ruling of the CA.
As holders of the disputed land’s TCT, the respondents are entitled to its
possession
 
“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 who is entitled to the physical or
material possession of the premises or possession de facto.” “Issues as to the right of
possession or ownership are not involved in the action; evidence thereon is not
admissible, except only for the purpose of determining the issue of possession.”
Thus, where the parties to an ejectment case raise the issue of ownership, the
courts may pass upon that issue but only to determine who between the parties has
the better right to possess the property. As such, any adjudication of the ownership
issue is not final and binding; it is only provisional, and not a bar to an action between
the same parties involving title to the property.
Here, the right of possession claimed by both parties is anchored on ownership.
The respondents posited that they are the registered owners of the subject land by
virtue of TCT No. T-38422 issued on July 3, 2007. They further asserted that their
ownership actually dates back to August 26, 1991 when the ownership over the
subject land was waived in their favor by its previous owner, Palma through an
Affidavit of Waiver and Quitclaim. They have occupied and possessed it by residing
thereon, building structures for commercial purposes and declaring it for realty tax
purposes. Meanwhile, the petitioner contended that he and his coheirs are the owners
of the subject land having inherited it from their father, Abadilla, Sr., who in turn
acquired it from the respondents themselves through an unregistered Deed of
Absolute Sale executed sometime in 1991.
As between the petitioner’s Deed of Absolute Sale and the respondents’ TCT No.
T-38422, the latter must prevail. A certificate of title is evidence of indefeasible and
incontrovertible title to the property in favor of the person whose name appears
therein. “[A] title issued under the Torrens system is entitled to all the attributes of
property ownership, which necessarily includes possession.” Hence, as holders of the
Torrens title over the subject land, the respondents are entitled to its possession.
 The admission by respondent Bonifacio that it is his signature which appears on
the Deed of Absolute Sale in favor of Abadilla, Sr. failed to conclusively establish that
the respondents parted with their ownership over the subject land in favor of the
petitioner’s predecessor-in-interest. The Court agrees with the findings of the RTC, as
affirmed by the CA, that no sale was perfected because they failed to agree on the
purchase price, thus:
It is now necessary to look into the evidences [sic] mentioned:
The first document — Exhibit “11” — Land Bank of the Philippines Check
On page 172 of the records, marked as Exhibit “11” is a photocopy of a Land
Bank of the Philippines Check, bearing Check No.
06-009267 in the amount of Php228,000.00 which check is supposed to have
been executed by the late Col. Abadilla in favor of the four (4) x x x vendors
(respondent Bonifacio and the owners of the adjoining lots), but, contrary to such
allegation, on its face, the payee is one RODOLFO JOSE.
The second — The supposed computation, found on page 173 of the records —
Exhibits “12” and “12-A” which is supposed to have come from the desk of
Rolando Abadilla – Vice Governor, with the written name RUDY JOSE above it,
and then some computation then the total, but all such figures have not been
labeled or itemized and their meanings or what they stand for cannot be
deciphered.
The third — Found on page 315 of the record is the Affidavit of Engr. Rodolfo
Jose, informing the late Col. Abadilla, among others, that the would-be vendors
did not want to push through with the intended sale anymore and, thereafter,
relayed their decision, and that he was free to get the money anytime from him,
signed by Engr. [Rodolfo] Jose, duly notarized, but he (Col. Abadilla) did not
respond up to his untimely death on June 13, 1996.
By all these referral to other documents mentioned by the [petitioner], the
Court could not make a reasonable conclusion that there was indeed a
consideration in the subject Deed of Sale considering that the check was in the
name of the Engr. Rodolfo Jose and not the supposed vendors, among the other
findings above.
The computations do not prove anything, having no sufficient explanations of
the figures mentioned therein, and the names of the [respondents] do not even
appear on its face.
The letter of Engr. Jose speaks for itself, that the sale did not push through.
 
Verily then, the petitioner’s claim of possession had no sufficient basis and it
cannot overthrow the attribute of possession attached to the respondents’ certificate
of title.
The criminal case filed by Palma against respondent Bonifacio involving the
Quitclaim through which the respondents trace their ownership is immaterial to the
controversy at bar. Questions on the validity of a Torrens title are outside the
jurisdiction and competence of the trial court in ejectment proceedings which are
limited only to the determination of physical possession. This is in consonance with
the settled doctrine that questions relating to the validity of a certificate of title during
ejectment proceedings are deemed and proscribed as collateral attack to such title. A
Torrens certificate of title cannot be the subject of collateral attack. The title
represented by the certificate cannot be changed, altered, modified, enlarged, or
diminished except in a direct proceeding. Thus, issues as to the validity of the
respondents’ title can only be definitively resolved in a direct proceeding for
cancellation of title before the RTCs.
Even disregarding the actual condition of the title to the property, there is
preponderance of evidence that the respondents were the party in peaceable, quiet
possession of the subject land before the petitioner committed the complained acts of
spoliation.
As borne by the records, the respondents have erected concrete and bamboo
structures (i.e., picnic shades, shower rooms, comfort rooms, lodging rooms,
cottages, apartelle) on the subject land, declared the same for taxation purposes and
paid the realty taxes thereon before the petitioner and his men entered the same on
September 22, 2007.
In contrast, the petitioner’s claim of possession was based on the unsubstantiated
and unreliable affidavits of his supposed caretakers that he had the land fenced in
1996 and thereafter maintained those fences thru repairs. As correctly observed by
the RTC and the CA, their affidavits failed to state whether the fences they built and
maintained pertained to the land subject of this controversy. Neither were the
supposed caretakers able to particularly identify the years when the fences were
purportedly repaired and when the respondents allegedly trespassed on the land.
Even if the petitioner were to be believed, his alleged caretakers on the land could
not have missed the structures built by the respondents and any report of intrusion
the petitioner received should have led him to take more substantial steps instead of
just merely having the fences fixed. The nature of the improvements built by the
respondents and the admitted fact that they used the same for residential and
business purposes should have impelled the petitioner to take legal action or judicial
measures as any truthfully disposed landowner should have, but he did not. Certainly,
his mere act of building or repairing fences cannot be considered as an act of
dominion; it is short of the legal safeguard which a land owner will devote to his
property supposedly encroached by trespassers.
The petitioner did not even oppose the proceedings in Cadastral Case No. 15-14
before the RTC of Laoag City, Branch 14, involving the registration of 136,812 square
meters of land to which the parcel in the present controversy belongs. In the said
case, OCT No. 460-L was issued jointly to the respondents and ADC on September
20, 1999. The land was thereafter partitioned and the respondents obtained their own
certificate of title over the herein subject portion on July 3, 2007.
Indeed, the petitioner failed to show any competent and convincing evidence of
possession or act of dominion in contrast to the overwhelming proof of actual
possession and occupation proffered by the respondents. Consequently, it is
indubitable that the respondents, as registered owners, are entitled to and must be
restored to the physical possession forcibly wrested from them by the petitioner. It
remains undisputed that the petitioner and his men unlawfully entered the land,
enclosed it with barbed wire fence, destroyed the improvements thereon and
excluded the respondents therefrom. These actions necessarily imply the use of force
which is remedied by the herein proceedings for ejectment.
Finally, the Court deems it proper not to rule on the last two issues raised by the
petitioner as they involve other cases which do not appear to have been already
finally adjudicated. Records show that Civil Case No. 14371 before the RTC of Laoag
City, Branch 14 is still pending appeal before the CA as C.A.-G.R. S.P. No. 116714.
At any rate, no forum shopping can be inferred therefrom since it was filed on July 18,
2008 or after the herein MTCC deemed as abandoned the respondents’ application
for the injunctive relief of preliminary mandatory injunction in an Order dated June 3,
2008. More so, in the absence of evidence showing that the issues involved in Civil
Case No. 14371 are the same with the issues at bar, the Court cannot give credence
to the petitioner’s claim of forum shopping.

Meanwhile, any dispositions in Civil Case No. 14371-14 in the RTC of Laoag City,
Branch 14 and Civil Case No. 3367 before the MTCC of Laoag City, Branch 1, all
involving ejectment complaints filed by the owners of lots adjoining the herein subject
land, are irrelevant to the controversy at bar which involves entirely different property
and interests.

WHEREFORE, premises considered, the petition is hereby DENIED. The

Decision dated February 28, 2011 of the Court of Appeals in C.A.-G.R. S.P. No.
110689 is AFFIRMED.
SO ORDERED.
 
Notes.—Where the cause of action in an ejectment suit is based on ownership of the
property, the defense that the defendant retained title or ownership is a proper subject for
determination by the Municipal Trial Court (MTC) but only for the purpose of adjudicating the
rightful possessor of the property. (Macaslang vs. Zamora, 649 SCRA 92 [2011])

Under said Sec. 19, Rule 70, a judgment on a forcible entry and detainer action is made
immediately executory to avoid further injustice to a lawful possessor. (Alconera vs. Pallanan,
714 SCRA 204 [2014])

——o0o——
 G.R. No. 166854. December 6, 2006.
SEMIRARA COAL CORPORATION (now SEMIRARA MINING CORPORATION),
petitioner, vs. HGL DEVELOPMENT CORPORATION and HON. ANTONIO
BANTOLO, Presiding Judge, Branch 13, Regional Trial Court, 6th Judicial Region,
Culasi, Antique, respondents.
Pleadings and Practice; Petitioner cannot complain of denial of due process when it was
its own doing that prevented it from presenting its evidence in opposition to the application for a
writ of preliminary mandatory injunction.—Petitioner’s failure to present its evidence was brought
by its own failure to appear on the hearing dates scheduled by the trial court. Thus, petitioner
cannot complain of denial of due process when it was its own doing that prevented it from
presenting its evidence in opposition to the application for a writ of preliminary mandatory
injunction.
Motions for Reconsideration; It has been held by this Court that a motion for
reconsideration is a condition sine qua non for the grant of the extraordinary writ of certiorari.—
Well settled is the rule that before a party may resort to the extraordinary writ of certiorari, it must
be shown that there is no other plain, speedy and adequate remedy in the ordinary course of
law. Thus, it has been held by this Court that a motion for reconsideration is a condition sine qua
non for the grant of the extraordinary writ of certiorari. Here, a motion for reconsideration was an
available plain, speedy and adequate remedy in the ordinary course of law, designed to give the
trial court the opportunity to correct itself.
Possession; Injunctions; A lawful possessor is entitled to be respected in his possession
and any disturbance of possession is a ground for the issuance of a writ of preliminary
mandatory injunction to restore the possession.—Under Article 539 of the New Civil Code, a
lawful possessor is entitled to be respected in his possession and any disturbance of possession
is a ground for the issuance of a writ of preliminary mandatory injunction to restore the
possession. Thus, petitioner’s claim that the issuance of a writ of preliminary mandatory
injunction is improper because the instant case is allegedly one for accion publiciana deserves
no consideration. This Court has already ruled in Torre, et al. v. Hon. J. Querubin, et al., 101
Phil. 53 (1957), that prior to the promulgation of the New Civil Code, it was deemed improper to
issue a writ of preliminary injunction where the party to be enjoined had already taken complete
material possession of the property involved. However, with the enactment of Article 539, the
plaintiff is now allowed to avail of a writ of preliminary mandatory injunction to restore him in his
possession during the pendency of his action to recover possession.
Injunctions; It is likewise established that a writ of mandatory injunction is granted upon a
showing that a) the invasion of the right is material and substantial; b) the right of complainant is
clear and unmistakable; and c) there is an urgent and permanent necessity for the writ to
prevent serious damage.—It is likewise established that a writ of mandatory injunction is granted
upon a showing that (a) the invasion of the right is material and substantial; (b) the right of
complainant is clear and unmistakable; and (c) there is an urgent and permanent necessity for
the writ to prevent serious damage.
QUISUMBING, J.:
Before us is a petition for review on certiorari assailing the Decision dated January 31,
2005, of the Court of Appeals in CA-G.R. CEB SP No. 00035 which affirmed the
Resolution dated September 16, 2004 of the Regional Trial Court of Culasi, Antique,
Branch 13.
The facts are as follows:
Petitioner Semirara Mining Corporation is a grantee by the Department of Energy
(DOE) of a Coal Operating Contract under Presidential Decree No. 972 over the
entire Island of Semirara, Antique, which contains an area of 5,500 hectares more or
less.
Private respondent HGL Development Corporation is a grantee of Forest Land
Grazing Lease Agreement (FLGLA) No. 184 by the then Ministry of Environment and
Natural Resources, over 367 hectares of land located at the barrios of Bobog and
Pontod, Semirara, Caluya, Antique. The FLGLA No. 184 was issued on September
28, 1984 for a term of 25 years, to end on December 31, 2009. Since its grant, HGL
has been grazing cattle on the subject property.
Sometime in 1999, petitioner’s representatives approached HGL and requested
for permission to allow petitioner’s trucks and other equipment to pass through the
property covered by the FLGLA. HGL granted the request on condition that
petitioner’s use would not violate the FLGLA in any way. Subsequently, however,
petitioner erected several buildings for petitioner’s administrative offices and
employees’ residences without HGL’s permission. Petitioner also conducted blasting
and excavation; constructed an access road to petitioner’s minesite in the Panaan
Coal Reserve, Semirara; and maintained a stockyard for the coal it extracted from its
mines. Thus, the land which had been used for cattle grazing was greatly damaged,
causing the decimation of HGL’s cattle.
On September 22, 1999, HGL wrote petitioner demanding full disclosure of
petitioner’s activities on the subject land as well as prohibiting petitioner from
constructing any improvements without HGL’s permission. Petitioner ignored the
demand and continued with its activities.
On December 6, 2000, the Department of Environment and Natural Resources
(DENR) unilaterally cancelled FLGLA No. 184 and ordered HGL to vacate the
premises. The DENR found that HGL failed to pay the annual rental and surcharges
from 1986 to 1999 and to submit the required Grazing Reports from 1985 to 1999 or
pay the corresponding penalty for non-submission thereof.
HGL contested the findings and filed a letter of reconsideration on January 12,
2001, which was denied by DENR Secretary Heherson Alvarez in a letter-order dated
December 9, 2002. The DENR stated that it had coordinated with the DOE, which
had jurisdiction over coal or coal deposits and coal-bearing lands, and was informed
that coal deposits were very likely to exist in Sitios Bobog and Pontod. Hence, unless
it could be proved that coal deposits were not present, HGL’s request had to be
denied.
HGL sent a letter dated March 6, 2003 to DENR Secretary Alvarez seeking
reconsideration. The DENR did not act on the letter and HGL later withdrew this
second letter of reconsideration in its letter of August 4, 2003.
On November 17, 2003, HGL filed a complaint against the DENR for specific
performance and damages with prayer for a temporary restraining order and/or writ of
preliminary injunction, docketed as Civil Case No. 20675 (2003) with the Regional
Trial Court of Caloocan City. A writ of preliminary injunction was issued by the
Caloocan City RTC on December 22, 2003, enjoining the DENR from enforcing its
December 6, 2000 Order of Cancellation.

Meanwhile, HGL had also filed on November 17, 2003, a complaint against
petitioner for Recovery of Possession and Damages with Prayer for TRO and/or Writ
of Preliminary Mandatory Injunction, docketed as Civil Case No. C-146 with the
Regional Trial Court of Culasi, Antique, Branch 13.
On December 1, 2003, the Antique trial court heard the application for Writ of
Preliminary Mandatory Injunction in Civil Case No. C-146. Only HGL presented its
evidence. Reception for petitioner’s evidence was set to March 23-24, 2004.
Petitioner was notified. But, on March 19, 2004, petitioner’s President wrote the court
asking for postponement since its counsel had suddenly resigned. The trial court
refused to take cognizance of the letter and treated it as a mere scrap of paper since
it failed to comply with the requisites for the filing of motions and since it was not
shown that petitioner’s President was authorized to represent petitioner. Because of
petitioner’s failure to attend the two scheduled hearings, the trial court, in an Order
dated March 24, 2004, deemed the application for issuance of a Writ of Preliminary
Mandatory Injunction submitted for decision. Meanwhile, petitioner had filed its
Answer dated February 26, 2004, raising among others the affirmative defense that
HGL no longer had any right to possess the subject property since its FLGLA has
already been cancelled and said cancellation had already become final.
On April 14, 2004, petitioner filed a verified Omnibus Motion praying that the trial
The Court of Appeals in the assailed Decision dated January 31, 2005, opined and
court reconsider its Order of March 24, 2004, since petitioner’s failure to attend the
ruled as follows (which we quote verbatim):
hearing was due to an accident. Petitioner also prayed that the trial court admit as
part of petitioner’s evidence in opposition to the application for injunction, certified
copies of the DENR Order of Cancellation dated December 6, 2000; HGL’s letter of
reconsideration dated January 12, 2001; letter of DENR Secretary Alvarez dated
December 9, 2002 denying reconsideration of the order; and registry return receipt
showing HGL’s receipt of the denial of reconsideration. In the alternative, petitioner
prayed that the case be set for preliminary hearing on its affirmative defense of lack of
cause of action and forum shopping. Public respondent denied the Omnibus Motion in
a Resolution dated June 21, 2004.
Petitioner filed a motion for reconsideration of the said resolution. Upon HGL’s
opposition, the motion was declared submitted for resolution in accordance with the
trial court’s Order of August 5, 2004.
On September 16, 2004, the trial court granted the prayer for issuance of a Writ of
Preliminary Mandatory Injunction. Petitioner did not move for reconsideration of the
order. The Writ of Preliminary Mandatory Injunction was accordingly issued by the
trial court on October 6, 2004. The writ restrained petitioner or its agents from
encroaching on the subject land or conducting any activities in it, and commanded
petitioner to restore possession of the subject land to HGL or its agents.
Petitioner questioned the Resolution dated September 16, 2004, and the Writ of
Preliminary Mandatory Injunction dated October 6, 2004 before the Court of Appeals
in a petition for certiorari, raising eight issues. On January 31, 2005, however, the
appellate court dismissed the petition. The Court of Appeals in its decision by Justice
Magpale ruled on the issues posed before the appellate court:
1.PRIVATE RESPONDENT HAS NO LEGAL RIGHT OR CAUSE OF ACTION
UNDER THE PRINCIPAL ACTION OR COMPLAINT, MUCH LESS, TO THE
ANCILLARY REMEDY OF INJUNCTION;
2.PRIVATE RESPONDENT DID NOT COME TO COURT WITH “CLEAN
HANDS;”
3.RESPONDENT JUDGE UNJUSTIFIABLY AND ARBITRARILY DEPRIVED
PETITIONER OF ITS FUNDAMENTAL RIGHT TO DUE PROCESS BY NOT
GIVING IT AN OPPORTUNITY TO PRESENT EVIDENCE IN OPPOSITION TO
THE MANDATORY INJUNCTION;
4.RESPONDENT JUDGE IMMEDIATELY GRANTED THE APPLICATION FOR
THE ISSUANCE OF A WRIT OF MANDATORY INJUNCTION WITHOUT FIRST
RESOLVING THE PENDING MOTION FOR RECONSIDERATION DATED JULY
12, 2004 OF PETITIONER;
5.RESPONDENT JUDGE DID NOT CONSIDER OR ADMIT THE CERTIFIED
TRUE COPIES OF THE OFFICIAL RECORDS OF THE DENR CANCELLING
PRIVATE RESPONDENT’S FLGLA AS EVIDENCE AGAINST THE
MANDATORY INJUNCTION PRAYED FOR;
6.RESPONDENT JUDGE SHOULD HAVE GRANTED PETITIONER’S MOTION
FOR PRELIMINARY HEARING ON ITS AFFIRMATIVE DEFENSE THAT
PRIVATE RESPONDENT UNDER ITS COMPLAINT HAS NO CAUSE OF
ACTION AGAINST PETITIONER;
7.RESPONDENT JUDGE SHOULD HAVE DISMISSED THE COMPLAINT
OUTRIGHT FOR VIOLATION OF THE RULES ON FORUM SHOPPING BY
PRIVATE RESPONDENT;
8.THE MANDATORY INJUNCTION ISSUED IN THE INSTANT CASE IS
VIOLATIVE OF THE PROVISIONS OF PRESIDENTIAL DECREE 605.
“Anent the first issue, WE rule against the petitioner. Perusal of the allegations in
the Complaint filed by the private respondent with the court a quo show that its
cause of action is mainly anchored on the Forest Land Grazing Lease Agreement
(“FLGLA”) executed by and between said private respondent and the Department
of Environment and Natural Resources (DENR) which became effective on
August 28, 1984 and to expire on December 31, 2009.
Under the said lease agreement, the private respondent was granted
permission to use and possess the subject land comprising of 367-hectares
located at the barrios of Bobog and Pontod, Semirara Island, Antique for cattle-
grazing purposes.
However, petitioner avers that the “FLGLA” on which private respondent’s
cause of action is based was already cancelled by the DENR by virtue of its
Orders dated December 6, 2000 and December 9, 2002.
While it is true that the DENR issued the said Orders cancelling the
“FLGLA,” the same is not yet FINAL since it is presently the subject of Civil Case
No. 20675 pending in the Regional Trial Court (RTC) of Caloocan City. Thus, for
all intents and purposes, the “FLGLA” is still subsisting.
The construction of numerous buildings and the blasting activities thereon by
the petitioner undertaken without the consent of the private respondent blatantly
violates the rights of the latter because it reduced the area being used for cattle-
grazing pursuant to the “FLGLA.”
From the foregoing it is clear that the three (3) indispensable requisites of a
cause of action, to wit: (a) the right in favor of the plaintiff by whatever means and
under whatever law it arises or is created; (b) an obligation on the part of the
named defendant to respect or not to violate such right; (c) an act or omission on
the part of such defendant is violative of the right of plaintiff or constituting a
breach of the obligation of defendant to the plaintiff for which the latter may
maintain an action for recovery of damages, are PRESENT.
Hence, having established that private respondent herein has a cause of
action under the principal action in Civil Case No. C-146, necessarily it also has a
cause of action under the ancillary remedy of injunction.
 Anent the third issue, WE rule against the petitioner. This Court finds that the
petitioner was not deprived of due process.
It appears from the records of the instant case that the petitioner was given
two (2) settings for the reception of its evidence in support of its opposition to the
prayer of herein private respondent for the issuance of a writ of preliminary
mandatory injunction. Unfortunately, on both occasions, petitioner did not present
its evidence.
Petitioner claims that its failure to attend the hearings for the reception of its
evidence was excusable due to the sudden resignation of its lawyer and as such,
nobody can attend the hearings of the case.
WE are not persuaded.
Scrutiny of the pleadings submitted by both parties shows that petitioner’s
lawyer, Atty. Mary Catherine P. Hilario, affiliates herself with the law firm of
BERNAS SAN JUAN & ASSOCIATE LAW OFFICES with address at 2nd Floor,
DMCI Plaza 2281 Pasong Tamo Extension, Makati City, by signing on and in
behalf of the said law office. This Court takes judicial notice of the fact that law
offices employ more than one (1) associate attorney aside from the name
partners. As such, it can easily assign the instant case to its other lawyers who
are more than capable to prepare the necessary “motion for postponement” or
personally appear to the court a quo to explain the situation.
Even assuming arguendo that Atty. Hilario is the only one who is
knowledgeable of the facts of the case, still, petitioners cannot claim that there
was violation of due process because the “ESSENCE of due process is
reasonable opportunity to be heard x x x. What the law proscribed is lack of
opportunity to be heard.” In the case at bar, petitioner was given two (2) settings
to present its evidence but it opted not to.
Lastly, a prayer for the issuance of a writ of preliminary mandatory injunction
demands urgent attention from the court and as such, delay/s is/are frowned
upon due to the irreparable damage/s that can be sustained by the movant.
Anent the fourth issue, WE rule against the petitioner.
Petitioner claims that the court a quo gravely erred when it issued the writ of
preliminary injunction without first resolving its Motion for Reconsideration dated
July 12, 2004.
WE rule that the public respondent cannot be faulted for not resolving the
Motion for Reconsideration dated July 12, 2004 because the same partakes of
the nature of a second motion for reconsideration of the Order dated March 24,
2004.
Records readily disclose that a prior motion for reconsideration was filed by
the petitioner herein assailing the Order dated March 24, 2004. Although
captioned as “Omnibus Motion” the same was really a motion for reconsideration.
Said “Omnibus Motion” was resolved by the court a quo in its Order dated June
21, 2004.
Hence, the public respondent is no longer duty bound to resolve the
subsequent, reiterative and second motion for reconsideration.
Anent the fifth issue, WE rule against the petitioner.
The court a quo was correct in disregarding the documentary evidence
submitted by the petitioner in support of its opposition to the prayer for the
issuance of a writ of preliminary mandatory injunction.
The documentary evidence submitted by the petitioner herein with the
court a quo were merely attached to an “Omnibus Motion” and was not properly
identified, marked and formally offered as evidence which is a blatant disregard
and violation of the Rules on Evidence.
Considering the above discussions, this Court finds that the public
respondent did not abuse his discretion in issuing the assailed resolution.
Anent the eighth issue, WE likewise rule against the petitioner.
Presidential Decree (PD) 605 is the law “Banning the Issuance by Courts of
Preliminary Injunctions in Cases Involving Concessions, Licenses, and Other
Permits Issued by Public Administrative Officials or Bodies for the Exploitation of
Natural Resources.”
Section 1 thereof provides that “No court of the Philippines shall have
jurisdiction to issue any restraining order, preliminary injunction or preliminary
mandatory injunction in any case involving or growing out of the issuance,
suspension, revocation, approval or disapproval of any concession, license,
permit, patent or public grant of any kind for the disposition, exploitation,
utilization, exploration and development of the natural resources of the country.”
The instant case is not within the purview of the above-cited law because the
issue/s raised herein does not involve or arise out of petitioner’s coal operation
contract.
The case filed with the court a quo is principally based on the alleged
encroachment by the petitioner of the subject land over which private respondent
claims it has authority to occupy or possess until December 31, 2009 pursuant to
FLGLA No. 184.
As such, the preliminary mandatory injunction issued by the court a quo did
not in any way affect the efficacy of the petitioner’s coal concession or license.
WHEREFORE, the instant petition for certiorari is DENIED and
consequently, the assailed Resolution is hereby AFFIRMED.
SO ORDERED.”
Hence, this instant petition. On February 23, 2005, this Court issued a TRO enjoining
the implementation and enforcement of the Court of Appeals Decision dated January
31, 2005.
Petitioner submits in the petition now the following grounds:
I
THE RESOLUTION DATED 16 SEPTEMBER 2004 AND THE WRIT OF
PRELIMINARY MANDATORY INJUNCTION DATED 6 OCTOBER 2004
ISSUED BY PUBLIC RESPONDENT ARE A PATENT NULLITY AS PRIVATE
RESPONDENT CLEARLY HAS NO LEGAL RIGHT OR CAUSE OF ACTION
UNDER ITS PRINCIPAL ACTION OR COMPLAINT, MUCH LESS, TO THE
ANCILLARY REMEDY OF PRELIMINARY MANDATORY INJUNCTION;
II
A WRIT OF PRELIMINARY MANDATORY INJUNCTION CANNOT BE USED
TO TAKE PROPERTY OUT OF THE POSSESSION OF ONE PARTY AND
PLACE IT INTO THAT OF ANOTHER WHO HAS NO CLEAR LEGAL RIGHT
THERETO;
III
PRIVATE RESPONDENT’S COMPLAINT IN CIVIL CASE NO. C146 IS IN
THE NATURE OF AN ACCION PUBLICIANA, NOT FORCIBLE ENTRY;
HENCE, A WRIT OF PRELIMINARY MANDATORY INJUNCTION IS NOT A
PROPER REMEDY;
IV
PETITIONER WAS UNJUSTIFIABLY AND ARBITRARILY DEPRIVED OF
ITS FUNDAMENTAL RIGHT TO DUE PROCESS WHEN IT WAS DENIED THE
RIGHT TO PRESENT EVIDENCE IN OPPOSITION TO THE APPLICATION
FOR PRELIMINARY MANDATORY INJUNCTION;
V
THE PUBLIC RESPONDENT DELIBERATELY WITHHELD THE
RESOLUTION OF PETITIONER’S MOTION FOR RECONSIDERATION DATED
12 JULY 2004 AND PROCEEDED TO PREMATURELY ISSUE THE
PRELIMINARY MANDATORY INJUNCTION IN VIOLATION OF PETITIONER’S
RIGHT TO FAIR PLAY AND JUSTICE;
VI
PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION
WHEN:
 1)HE REFUSED OR FAILED TO ADMIT AND/OR CONSIDER THE
CERTIFIED DENR RECORDS OF THE DENR ORDER CANCELLING
PRIVATE RESPONDENT’S FLGLA;
2)HE REFUSED OR FAILED TO CONDUCT A HEARING ON THESE
CERTIFIED PUBLIC DOCUMENTS WHICH CONCLUSIVELY PROVE
PRIVATE RESPONDENT’S LACK OF CAUSE OF ACTION UNDER THE
PRINCIPAL ACTION; AND
3)HE REFUSED OR FAILED TO DISMISS THE COMPLAINT
OUTRIGHT FOR VIOLATING THE RULES ON FORUM SHOPPING BY
PRIVATE RESPONDENT.
Before this Court decides the substantive issues raised herein, certain procedural
issues that were raised by the parties must first be addressed.
Petitioner contends that it was improper for the Regional Trial Court of Antique to
issue the writ of preliminary mandatory injunction (and for the Court of Appeals to
affirm the same) without giving it an opportunity to present evidence and without first
resolving the Motion for Reconsideration dated July 12, 2004. But as borne by the
records of the case, it is evident that petitioner had the opportunity to present
evidence in its favor during the hearing for the application of the writ of preliminary
mandatory injunction before the lower court. However, petitioner’s failure to present
its evidence was brought by its own failure to appear on the hearing dates scheduled
by the trial court. Thus, petitioner cannot complain of denial of due process when it
was its own doing that prevented it from presenting its evidence in opposition to the
application for a writ of preliminary mandatory injunction. It must be pointed out that
the trial court correctly refused to take cognizance of the letter of petitioner’s
President which prayed for the postponement of the scheduled hearings. Said letter
was not a proper motion that must be filed before the lower court for the stated
purpose by its counsel of record. Moreover, there was absolutely no proof given that
the sender of the letter was the duly authorized representative of petitioner.
Second, the filing of the motion for reconsideration dated July 12, 2004, which
essentially reproduced the arguments contained in the previously filed and denied
Omnibus Motion dated April 14, 2004, renders the said motion for reconsideration
dated July 12, 2004, a mere pro forma motion. Moreover, the motion for
reconsideration dated June 12, 2004, being a second motion for reconsideration, the
trial court correctly denied it for being a prohibited motion.
Third, it must be stated that the petition for certiorari before the Court of Appeals
should not have prospered because petitioner failed to file a motion for
reconsideration from the assailed resolution of the Regional Trial Court of Antique,
granting the writ of preliminary mandatory injunction. Well settled is the rule that
before a party may resort to the extraordinary writ of certiorari, it must be shown that
there is no other plain, speedy and adequate remedy in the ordinary course of law.
Thus, it has been held by this Court that a motion for reconsideration is a
condition sine qua non for the grant of the extraordinary writ of certiorari. Here, a
motion for reconsideration was an available plain, speedy and adequate remedy in
the ordinary course of law, designed to give the trial court the opportunity to correct
itself.
Now on the merits of the instant petition.
The pivotal issue confronting this Court is whether the Court of Appeals seriously
erred or committed grave abuse of discretion in affirming the September 16, 2004
Resolution of the Regional Trial Court of Antique granting the writ of preliminary
mandatory injunction.
Under Article 539 of the New Civil Code, a lawful possessor is entitled to be
respected in his possession and any disturbance of possession is a ground for the
issuance of a writ of preliminary mandatory injunction to restore the possession. Thus,
petitioner’s claim that the issuance of a writ of preliminary mandatory injunction is
improper because the instant case is allegedly one for accion publiciana deserves no
consideration. This Court has already ruled in Torre, et al. v. Hon. J. Querubin, et al.
that prior to the promulgation of the New Civil Code, it was deemed improper to issue
a writ of preliminary injunction where the party to be enjoined had already taken
complete material possession of the property involved. However, with the enactment
of Article 539, the plaintiff is now allowed to avail of a writ of preliminary mandatory
injunction to restore him in his possession during the pendency of his action to
recover possession.
It is likewise established that a writ of mandatory injunction is granted upon a
showing that (a) the invasion of the right is material and substantial; (b) the right of
complainant is clear and unmistakable; and (c) there is an urgent and permanent
necessity for the writ to prevent serious damage.
In the instant case, it is clear that as holder of a pasture lease agreement under
FLGLA No. 184, HGL has a clear and unmistakable right to the possession of the
subject property. Recall that under the FLGLA, HGL has the right to the lawful
possession of the subject property for a period of 25 years or until 2009. As lawful
possessor, HGL is therefore entitled to protection of its possession of the subject
property and any disturbance of its possession is a valid ground for the issuance of a
writ of preliminary mandatory injunction in its favor. The right of HGL to the
possession of the property is confirmed by petitioner itself when it sought permission
from HGL to use the subject property in 1999. In contrast to HGL’s clear legal right to
use and possess the subject property, petitioner’s possession was merely by
tolerance of HGL and only because HGL permitted petitioner to use a portion of the
subject property so that the latter could gain easier access to its mining area in the
Panaan Coal Reserve.
The urgency and necessity for the issuance of a writ of mandatory injunction also
cannot be denied, considering that HGL stands to suffer material and substantial
injury as a result of petitioner’s continuous intrusion into the subject property.
Petitioner’s continued occupation of the property not only results in the deprivation of
HGL of the use and possession of the subject property but likewise affects HGL’s
business operations. It must be noted that petitioner occupied the property and
prevented HGL from conducting its business way back in 1999 when HGL still had
the right to the use and possession of the property for another 10 years or until 2009.
At the very least, the failure of HGL to operate its cattlegrazing business is perceived
as an inability by HGL to comply with the demands of its customers and sows doubts
in HGL’s capacity to continue doing business. This damage to HGL’s business
standing is irreparable injury because no fair and reasonable redress can be had by
HGL insofar as the damage to its goodwill and business reputation is concerned.
 Petitioner posits that FLGLA No. 184 had already been cancelled by the DENR in
its order dated December 6, 2000. But as rightly held by the Court of Appeals, the
alleged cancellation of FLGLA No. 184 through a unilateral act of the DENR does not
automatically render the FLGLA invalid since the unilateral cancellation is subject of a
separate case which is still pending before the Regional Trial Court of Caloocan City.
Notably, said court has issued a writ of preliminary injunction enjoining the DENR
from enforcing its order of cancellation of FLGLA No. 184.

The Court of Appeals found that the construction of numerous buildings and
blasting activities by petitioner were done without the consent of HGL, but in blatant
violation of its rights as the lessee of the subject property. It was likewise found that
these unauthorized activities effectively deprived HGL of its right to use the subject
property for cattle-grazing pursuant to the FLGLA. It cannot be denied that the
continuance of petitioner’s possession during the pendency of the case for recovery
of possession will not only be unfair but will undeniably work injustice to HGL. It would
also cause continuing damage and material injury to HGL. Thus, the Court of Appeals
correctly upheld the issuance of the writ of preliminary mandatory injunction in favor
of HGL.

WHEREFORE, the instant petition is DENIED. The Decision dated January 31,
2005, of the Court of Appeals in CAG.R. CEB SP No. 00035, which affirmed the
Resolution dated September 16, 2004 of the Regional Trial Court of Culasi, Antique,
Branch 13, as well as the Writ of Preliminary Mandatory Injunction dated October 6,
2004 issued pursuant to said Resolution, is AFFIRMED. The temporary restraining
order issued by this Court is hereby lifted. No pronouncement as to costs.
SO ORDERED.
     
Notes.—It is well-settled that before a writ of preliminary injunction may be issued, there
must be a clear showing by the complainant that there exists a right to be protected and that the
acts against the writ is to be directed are violative of established rights. (G & S Transport vs.
Court of Appeals, 382 SCRA 262 [2002])

The sole purpose of an injunction is not to correct a wrong of the past, in the sense of
redress for injury already sustained, but to prevent further injury. (First Global Realty and
Development Corporation vs. San Agustin, 377 SCRA 341 [2002])

——o0o——
 G.R. No. 139136. January 16, 2002.
LINA ABALON LUBOS, petitioner, vs. MARITES GALUPO, DELIA GALUPO, JUAN
GALUPO, PRUDENCIO GALUPO, PRECIOSA GALUPO and MANSUETO
GALUPO, JR., respondents.
Remedial Law; Appeals; Factual findings of the trial court, adopted and confirmed by the
Court of Appeals, are final and conclusive and may not be reviewed on appeal.—We deny the
petition. The issue raised is factual. It is a well-settled rule that factual findings of the trial court,
adopted and confirmed by the Court of Appeals, are final and conclusive and may not be
reviewed on appeal.
Civil Law; Property; Possession; Prescription; Acquisitive prescription of dominion and
other real rights may be ordinary or extraordinary, depending on whether the property is
possessed in good faith and with just title for the time fixed by law.—To determine if the
respondents may still file an action to recover realty it becomes necessary to determine if
petitioner Lubos has acquired the land by acquisitive prescription. Acquisitive prescription of
dominion and other real rights may be ordinary or extraordinary, depending on whether the
property is possessed in good faith and with just title for the time fixed by law.
Same; Same; Same; Same; Acquisitive prescription is a mode of acquiring ownership by
a possessor through the requisite lapse of time.— Acquisitive prescription is a mode of acquiring
ownership by a possessor through the requisite lapse of time. In order to ripen into ownership,
possession must be in the concept of an owner, public, peaceful and uninterrupted. Thus,
possession with a juridical title, such as by a usufructuary, a trustee, a lessee, agent or a
pledgee, not being in the concept of an owner, cannot ripen into ownership by acquisitive
prescription unless the juridical relation is first expressly repudiated and such repudiation has
been communicated to the other party.
PARDO, J.:
The Case
In this appeal, petitioner seeks to set aside the decision of the Court of Appeals
affirming that of the Regional Trial Court, Makati, Branch 66, ruling that respondents
are the absolute owners of the parcel of land involved in the complaint.
The Facts
The facts, as found by the Court of Appeals, are as follows:
“The subject of the said case is a parcel of land with an area of 10.8224
hectares, more or less, located in Sitio Naganaga, Barrio Cababtuan,
Municipality of Pambujan, Northern Samar, originally tax declared in the name of
Victoriana Dulay in Tax Declaration No. 17056 (Exh. ‘A’).
“The plaintiffs claim that on January 28, 1928, in a private instrument written
in Spanish entitled ‘Escritura de Compra y Venta’ (Exh. ‘B’), Victoriana Dulay and
her son Restituto D. Merino sold the said property to Juan Galupo. On the death
of Juan Galupo, the same was inherited by his son Mansueto Galupo, Sr., who,
in 1952, obtained the cancellation of Tax Declaration No. 17056 and the
issuance of Tax Declaration No. 24041 (Exh. ‘C’) in lieu thereof in his name. The
said Tax Declaration was superseded in 1985 by Tax Declaration No. 3393 (Exh.
‘D’) pursuant to the general revision under P.D. 1621.
“Mansueto Galupo, Sr. died in 1981. The plaintiffs are his children out of two
marriages.
“The plaintiffs complain that in 1984, they discovered the land to be occupied
by the tenant farmers of defendant Lina Abalon Lubos. They checked with the
Office of the Municipal Assessor, and they found that the original Tax Declaration
No. 17056 had been ‘re-assessed’ by Lina Abalon Lubos, who obtained a new
Tax Declaration No. 34286 (Exh. ‘3’) in her name, while Tax Declaration No.
24041 in their father’s name had been removed from the files. On or about
November 16, 1990, Lina Abalon Lubos sold a portion of the said land to Alicio
Poldo, married to Teresita Poldo (Exh. ‘H’). The plaintiffs sought the annulment of
the said sale, and a declaration that they are the lawful owners of the land.
“On the other hand, defendant Lina Abalon Lubos contends that the subject
land was originally owned by Victoriana Dulay alone, who is her great
grandmother. Victoriana Dulay sold the property to her father Juan F. Abalon.
Her father possessed the property for over thirty (30) years until 1975, when he
sold the same to her (Exh. ‘5’). Consequently, she caused the cancellation of Tax
Declaration No. 17056 and she obtained Tax Declaration No. 34286 in her name.
Subsequently, she sold a portion of the property to the spouses Poldo, who claim
to be purchasers in good faith.”
On November 26, 1992, the trial court rendered a decision, the dispositive portion of
which reads:
“WHEREFORE, judgment is hereby rendered in favor of plaintiffs and against the
defendants by:
“1.Declaring the plaintiffs as the exclusive and absolute owners of the
parcel of land described and delimited in their complaint, as amended;
“2.Declaring the sale executed by co-defendant Lina Abalon-Lubos
(Exh. “5”) of the portion of the land in question, measuring 26,670
square meters (2-66-70 Has.), as null and void ab initio;
“3.Ordering the cancellation of Tax Declaration No. 34286 and Tax
Declaration No. 703, both in the name of Lina Abalon-Lubos, as owner,
for the land in question, in the book of assessment of real properties in
the office of the municipal assessor of either San Roque or Pambujan,
Northern Samar, and in the office of the Provincial Assessor of Northern
Samar;
“4.Condemning the defendants Lina Abalon-Lubos and Alicio Poldo and
Teresita Poldo, jointly and severally, to pay the plaintiffs the sum of
FIFTY THOUSAND (P50,000.00) Pesos, in moral damages aggregately
for all of them; P10,000.00, as attorney’s fees and P3,000.00 as
litigation expenses; and,
“5.Commanding the defendants to vacate from the premises in question,
and to peacefully deliver the same to the possession of plaintiffs, with
costs against the defendants.
“SO ORDERED.
“Laoang, Northern Samar, Nov. 26, 1992.
“(sgd.) MATEO M. LEANDA     
“Judge”     
Petitioner Lubos and the spouses Poldo appealed the decision to the Court of
Appeals.
On August 29, 1997, the Court of Appeals promulgated a decision affirming in
toto the decision of the trial court.
On October 21, 1997, Lubos filed with the Court of Appeals a motion for
reconsideration of the decision. However, the Court of Appeals denied the motion.
Hence, this appeal.
The Issue
The issue is, who as between the parties have a better right or title to the subject lot?
 The Court’s Ruling
We deny the petition. The issue raised is factual.
It is a well-settled rule that factual findings of the trial court, adopted and
confirmed by the Court of Appeals, are final and conclusive and may not be reviewed
on appeal.
Article 1141, Civil Code, governs prescription of real action over immovables. It
provides:
“Real actions over immovables prescribe after thirty years.
“This provision is without prejudice to what is established for the
acquisition of ownership and other real rights by prescription.”
To determine if the respondents may still file an action to recover realty it becomes
necessary to determine if petitioner Lubos has acquired the land by acquisitive
prescription.
Acquisitive prescription of dominion and other real rights may be ordinary or
extraordinary, depending on whether the property is possessed in good faith and with
just title for the time fixed by law.
Articles 1134 and 1137 of the Civil Code fixed the periods of possession, which
provide:
“Art. 1134. Ownership and other real rights over immovable property are
acquired by ordinary prescription through possession of ten years.
“Art. 1137. Ownership and other real rights over immovables also prescribe
through uninterrupted adverse possession thereof for thirty years, without need
of title or of good faith.”
For the purposes of prescription, there is just title when the adverse claimant came
into possession of the property through one of the modes recognized by law for the
acquisition of ownership or other real rights, but the grantor was not the owner or
could not transmit any right. On the other hand, good faith consists in the reasonable
belief that the person from whom the possessor received the thing was its owner but
could not transmit the ownership thereof.
The trial court found that the contract entered into between petitioner Lubos and
her father, Juan Abalon, was fictitious, to which we agree. Consequently, petitioner
has not acquired a just title to the property.
Petitioner’s lack of good faith was also apparent.
Petitioner Lubos has not offered any documentary proof of the transaction
between her father and Victoriana Dulay, the original owner. What she presented
were the testimonies of the tenants who worked on the land. From these testimonies,
it would appear that Juan Abalon was in possession as early as 1963.
Note, however, that the nature of Juan Abalon’s possession cannot be
categorically determined from the testimonies given. Tenant Jose Morillo admitted
that he did not exactly know who the owner is, while tenant Arturo Tuballas admitted
that he did not know how Juan Abalon came to possess the land.
The property was still declared in the name of Victoriana Dulay at the time that
Juan Abalon sold the land to petitioner Lubos.
Acquisitive prescription is a mode of acquiring ownership by a possessor through
the requisite lapse of time. In order to ripen into ownership, possession must be in the
concept of an owner, public, peaceful and uninterrupted. Thus, possession with a
juridical title, such as by a usufructuary, a trustee, a lessee, agent or a pledgee, not
being in the concept of an owner, cannot ripen into ownership by acquisitive
prescription unless the juridical relation is first expressly repudiated and such
repudiation has been communicated to the other party.
Assuming that Lina Abalon and her father possessed the property in the concept
of owner, still, acquisition of ownership by prescription has not run in their favor.
When the respondents filed the instant case on October 10, 1991, petitioner
Lubos was in possession of the property for only twenty-eight (28) years counted from
1963 as testified to by petitioner’s witnesses. This is short of the required thirty years
of uninterrupted adverse possession without just title and good faith.
The respondent Galupos, on the other hand, presented the escritura de compra y
venta which showed that the land was sold by Victoriana Dulay to Juan Galupo. Upon
Juan Galupo’s death, the property was inherited by his heir, Mansueto Galupo, Sr.
Likewise, respondents inherited the land from their father upon the latter’s death in
1981.
The trial court admitted the escritura de compra y venta as an ancient document.
Petitioner assails the admission of the escritura de compra y venta as there was
no translation thereof. Petitioner further claimed that the authenticity and due
execution of the escritura de compra y venta must be proven. She further assails the
relevance of the said document for failure to show that the land described therein is
the same land subject of the present controversy.
With respect to the admissibility of the escritura de compra y venta, we agree with
the Court of Appeals that it is admissible even if not translated from its Spanish text
because it was not objected to and was an ancient document.
Obviously, petitioner has failed to establish the chain of title through which the
land passed to her. As heretofore stated, no proof was presented to show that,
indeed, the land was transferred from its original owner, Victoriana Dulay, to
petitioner’s father, Juan Abalon.
In contrast, the respondents have shown that the land came to their possession
as heirs of Mansueto Galupo, Sr. who was the heir of Juan Galupo, the person to
whom Victoriana Dulay transferred the land.
The Fallo
WHEREFORE, the Court DENIES the petition and AFFIRMS the decision of the
Court of Appeals.
No costs.
SO ORDERED.
 G.R. No. 135219. January 17, 2002.
PHILIPPINE NATIONAL BANK, petitioner, vs. THE COURT OF APPEALS and
ERNESTO AUSTRIA and LORETO Q. QUINTANA, respondents.
Remedial Law; Foreclosures; Possession; The obligation of a court to issue an ex-parte
writ of possession in favor of the purchaser in an extrajudicial foreclosure sale ceases to be
ministerial once it appears that there is a third party in possession of the property who is
claiming a right adverse to that of the debtor/mortgagor.—Thus, in Barican v. Intermediate
Appellate Court, we held that the obligation of a court to issue an ex-parte writ of possession in
favor of the purchaser in an extrajudicial foreclosure sale ceases to be ministerial once it
appears that there is a third party in possession of the property who is claiming a right adverse
to that of the debtor/mortgagor. The same principle was inversely applied in a more recent case,
where we ruled that a writ of possession may be issued in an extrajudicial foreclosure of real
estate mortgage, only if the debtor is in possession and no third party had intervened. Although
the factual nuances of this case may slightly differ from the aforecited cases, the availing
circumstances are undeniably similar—a party in possession of the foreclosed property is
asserting a right adverse to the debtor/mortgagor and is a stranger to the foreclosure
proceedings in which the ex-parte writ of possession was applied for.
Same; Same; Same; One who claims to be the owner of a property possessed by
another must bring the appropriate judicial action for its physical recovery.—Notably, the Civil
Code protects the actual possessor of a property, to wit: Art. 433. Actual possession under claim
of ownership raises a disputable presumption of ownership. The true owner must resort to
judicial process for the recovery of the property. Under the aforequoted provision, one who
claims to be the owner of a property possessed by another must bring the appropriate judicial
action for its physical recovery. The term “judicial process” could mean no less than an
ejectment suit or reinvindicatory action, in which the ownership claims of the contending parties
may be properly heard and adjudicated.
Same; Same; Same; An ex-parte petition for issuance of a possessory writ under
Section 7 of Act No. 3135 is not, strictly speaking, a “judicial process”.—An ex-parte petition for
issuance of a possessory writ under Section 7 of Act No. 3135 is not, strictly speaking, a “judicial
process” as contemplated above. Even if the same may be considered a judicial proceeding for
the enforcement of one’s right of possession as purchaser in a foreclosure sale, it is not an
ordinary suit filed in court, by which one party “sues another for the enforcement or protection of
a right, or the prevention or redress of a wrong.”
Same; Same; Same; An ex-parte petition for issuance of a writ of possession is a non-
litigious proceeding authorized in an extrajudicial foreclosure of mortgage pursuant to Act 3135.
—It should be emphasized that an ex-parte petition for issuance of a writ of possession is a non-
litigious proceeding authorized in an extrajudicial foreclosure of mortgage pursuant to Act 3135,
as amended. Unlike a judicial foreclosure of real estate mortgage under Rule 68 of the Rules of
Court, any property brought within the ambit of the act is foreclosed by the filing of a petition, not
with any court of justice, but with the office of the sheriff of the province where the sale is to be
made.
Same; Same; Same; The actual possessor of a property enjoys a legal presumption of
just title in his favor.—Besides, as earlier stressed, Article 433 of the Civil Code, cited above,
requires nothing less than an action for ejectment to be brought even by the true owner. After all,
the actual possessor of a property enjoys a legal presumption of just title in his favor, which must
be overcome by the party claiming otherwise.
YNARES-SANTIAGO, J.:
Before us is a petition for review under Rule 45 of the Rules of Court, seeking a
reversal of the Court of Appeals’ resolution in CA-G.R. SP No. 48660 dated August
25, 1998, which affirmed the order of the Regional Trial Court of Makati, Branch 60 in
LRC Case No. M-2635.
Sometime during the late 70’s, the spouses Godofredo and Wilma Monsod
obtained a loan in the amount of P120,000.00 from petitioner Philippine National
Bank (PNB). To secure their loan, the Monsods mortgaged to PNB a parcel of land
covered by TCT No. S-84843, located within the Monte Villa de Monsod Subdivision
in Parañaque, Rizal.
Due to Monsods’ failure to pay their loan obligation, PNB extrajudicially foreclosed
the mortgage. At the auction sale of the subject real property, PNB was declared the
highest bidder. On December 21, 1981, a certificate of sale was issued in favor of
PNB, and was registered on July 11, 1984.
Upon expiration of the redemption period on July 12, 1985, ownership of the
property was consolidated in PNB. Thereafter, TCT No. S-84843 was cancelled and
TCT No. 99480 was issued in PNB’s name.
On June 23, 1992, PNB filed an “Ex-Parte Petition for the Issuance of Writ of
Possession” with Branch 60 of the Regional Trial Court of Makati City, docketed as
LRC Case No. M-2635. Pursuant to the provisions of Act No. 3135, as amended, the
trial court conducted an ex parte hearing. PNB’s representative testified that the
foreclosed property is occupied by one Ernesto Austria. According to PNB, Mr.
Austria was invited by the bank to a conference to discuss the ownership of the
foreclosed lot, however, he did not honor the bank’s invitation.
On August 28, 1992, the trial court granted PNB’s petition and a writ of
possession was issued on October 26, 1992.
On December 11, 1992, respondents Ernesto and Loreto Quintana Austria filed a
“Motion for Intervention and to Recall and/or Stop the Enforcement of the Writ of
Possession.” The Austrias alleged that they are the actual occupants of the subject
lot, which they purportedly bought from the Monsods as early as 1974. They claimed
that the foreclosed property was enclosed within a concrete fence and formed part of
their family compound. PNB allegedly knew of this fact even before it granted the loan
to the Monsods, because the bank’s credit investigators were advised of the same
when they inspected the property in the summer of 1976. Consequently, the Austrias
maintained that the issuance of the possessory writ ex parte was improper, since it
will deprive them of their property without due process.
Due to the Austrias’ refusal to vacate the premises, the sheriff failed to enforce
the challenged writ.
On July 27, 1993, on motion of PNB, the trial court issued an alias writ of
possession. Again, the writ was not implemented.
On September 17, 1993, the sheriff sought to enforce the first alias writ of
possession for the second time. The Austrias filed a “Second Motion for Intervention”
seeking to restrain the enforcement of the writ of possession issued on October 26,
1992. PNB then filed an “Urgent Ex-Parte Motion for Issuance of Break Open Order”
and, subsequently, an Opposition to the Austrias’ Second Motion for Intervention.
On January 31, 1994, the trial court denied the Austrias’ second motion and granted
PNB’s “Motion for Issuance of Break Open Order.” The trial court ruled that the
Austrias can no longer be permitted to intervene in the case during said stage of the
proceedings and that the remedy of the Austrias was to file an ordinary civil action to
assert their claim of ownership over the property.
In the meantime, the first alias writ of possession lapsed. PNB thus filed an “Ex-
Parte Motion for Issuance of Second Alias Writ of Possession,” and on November 29,
1994, a second alias writ was issued.
Unfazed, the Austrias filed an Omnibus Motion on January 25, 1995, seeking a
recall of the second alias writ and a reconsideration of the trial court’s order denying
their motion to intervene. Meanwhile, the second alias writ had likewise expired.
PNB filed a “Manifestation and Motion for Issuance of Third Alias Writ of
Possession,” which the trial court granted anew in an order dated October 10, 1995.
However, on December 12, 1995, the Austrias again filed a motion to set aside
the trial court’s order dated October 10, 1995 and to recall the third alias writ.
Consequent to the filing of this fourth motion, the sheriff again failed to implement
the third alias writ, which also lapsed. Thus, on February 15, 1996, PNB filed another
“Motion for Issuance of a Fourth Alias Writ,” which was granted on March 26, 1996.
The trial court, after hearing the Austrias’ fourth motion, issued an order on
October 4, 1996, denying the same, on the ground that the issuance of a possessory
writ for a property sold at public auction pursuant to an extra-judicial foreclosure
proceeding was a ministerial duty on its part. The Austrias failed to establish any legal
ground for recalling the writs, even as they claimed a superior right to the subject
property.
On February 19, 1997, the fourth alias writ was issued by the trial court. The writ
was partially implemented with the posting of PNB security guards within the
premises of the foreclosed lot.
On April 17, 1997, the Austrias, for the fifth time, filed a motion to stop the
enforcement of the fourth alias writ and to set aside all prior writs issued by the trial
court.
In the meantime, the Austrias filed before the Regional Trial Court of Parañaque,
an action for cancellation of PNB’s title to the property, docketed as Civil Case No.
97-0184.
On October 28, 1997, the trial court denied the Austrias’ fifth motion but ruled
that: “any writ of possession that may be issued in this case, is declared
unenforceable against the MOVANTS ERNESTO AUSTRIA and the HEIRS OF
LORETO AUSTRIA, until the Court declares otherwise.”
PNB filed a motion for reconsideration, which was denied on May 20, 1998. A
petition for certiorari under Rule 65 of the Rules of Court was filed by PNB before the
Court of Appeals. However, the Court of Appeals dismissed the petition, stating:
There is no prima facie showing of grave abuse of discretion on the part of
respondent Judge in issuing his assailed Order which the Court finds to be in
accord with law, the pertinent rules and jurisprudence cited therein.
Hence, PNB filed the instant petition, contending that:
I
THE COURT OF APPEALS COMMITTED A SERIOUS ERROR BY SIMPLY
ADOPTING THE FINDINGS OF THE TRIAL COURT THAT WRIT OF
POSSESSION CANNOT BE ENFORCED AGAINST RESPONDENT AUSTRIA.
SAID FINDINGS ARE UNPROVEN AND UNSUPPORTED BY EVIDENCE.
II
THE COURT OF APPEALS COMMITTED SERIOUS MISAPPREHENSION
OF FACTS IN:
A)SUPPORTING THE JURISPRUDENCE CITED BY THE TRIAL
COURT IN THE OCTOBER 28, 1997 ORDER. THE RULINGS DO NOT
JUSTIFY THE NON-ENFORCEMENT OF THE WRIT OF POSSESSION
AGAINST RESPONDENTS. RESPONDENTS WERE GIVEN THE
OPPORTUNITY TO BE HEARD BUT NO EVIDENCE WAS
PRESENTED TO SUPPORT THEIR CLAIM;
B)NOT GIVING DUE CONSIDERATION TO THE FACT THAT PNB HAS
THE LEGAL RIGHT TO POSSESS THE PROPERTY AS ITS
REGISTERED OWNER;
C)LOSING SIGHT OF THE FACT THAT THE TRIAL COURT
BELATEDLY ISSUED THE OCTOBER 28, 1997 ORDER DIRECTING
THAT THE WRIT OF POSSESSION CANNOT BE ENFORCED
AGAINST THE RESPONDENTS. THE TRIAL COURT HAD EARLIER
ISSUED FOUR (4) POSSESSORY WRITS ALL OF WHICH WERE
DIRECTED AGAINST RESPONDENTS AUSTRIA & QUINTANA.
The basic issue to be resolved in this case is whether or not an ex-parte writ of
possession issued pursuant to Act No. 3135, as amended, can be enforced against a
third person who is in actual possession of the foreclosed property and who is not in
privity with the debtor/mortgagor.
Petitioner PNB maintains that the trial court’s order was based on the unproven
allegation that respondents had purchased the property from the Monsods before the
latter mortgaged it to PNB. According to petitioner PNB, respondents did not adduce
any proof to support their claim of ownership, even as they were repeatedly given the
opportunity to do so during the hearings on the numerous motions filed by
respondents themselves.
Petitioner PNB also submits that since it is the registered owner of the property, it is
entitled to a writ of possession as a matter of right. The bank insists that it could rely
on the title of the registered land which does not have any annotation of respondents’
supposed rights.
Petitioner PNB likewise avers that the trial court could not now belatedly refuse to
enforce the writ of possession against respondents. The trial court had already issued
a total of four possessory writs directing the ouster of all occupants of the lot,
including respondents herein.
 On the other hand, respondents assert that the trial court correctly held that the
writ of possession can only be implemented against the debtor/mortgagor and his
successors-in-interest. Since respondents acquired their rights as owners of the
property by virtue of a sale made to them by the Monsods prior to the bank’s
mortgage lien, respondents can not be dispossessed therefrom without due notice
and hearing, through the simple expedient of an ex-parte possessory writ.
We agree with respondents. Under applicable laws and jurisprudence, they can
not be ejected from the property by means of an ex-parte writ of possession.
The operative provision under Act No. 3135, as amended, is Section 6, which
states:
Sec. 6. Redemption.—In all cases in which an extrajudicial sale is made under
the special power hereinbefore referred to, the debtor, his successors in interest
or any person having a lien on the property subsequent to the mortgage or deed
of trust under which the property is sold, may redeem the same at any time within
the term of one year from and after the date of the sale; and such redemption
shall be governed by the provisions of section four hundred and sixty-four to four
hundred and sixty-six, inclusive, of the Code of Civil Procedure, in so far as
these are not inconsistent with the provisions of this Act. (Italics ours)
Despite the evolutionary development of our procedural laws throughout the years,
the pertinent rule in the Code of Civil Procedure remains practically unchanged.
Particularly, Rule 39, Section 33, second paragraph, which relates to the right of
possession of a purchaser of property in an extrajudicial foreclosure sale:
Sec. 33. x x x
Upon the expiration of the right of redemption, the purchaser or
redemptioner shall be substituted to and acquire all the rights, title, interest and
claim of the judgment obligor to the property at the time of levy. The possession
of the property shall be given to the purchaser or last redemptioner by the same
officer unless a third party is actually holding the property adversely to the
judgment obligor. (Italics ours)
Thus, in Barican v. Intermediate Appellate Court, we held that the obligation of a court
to issue an ex-parte writ of possession in favor of the purchaser in an extrajudicial
foreclosure sale ceases to be ministerial once it appears that there is a third party in
possession of the property who is claiming a right adverse to that of the
debtor/mortgagor. The same principle was inversely applied in a more recent case,
where we ruled that a writ of possession may be issued in an extrajudicial foreclosure
of real estate mortgage, only if the debtor is in possession and no third party had
intervened. Although the factual nuances of this case may slightly differ from the
aforecited cases, the availing circumstances are undeniably similar—a party in
possession of the foreclosed property is asserting a right adverse to the
debtor/mortgagor and is a stranger to the foreclosure proceedings in which the ex-
parte writ of possession was applied for.
It should be stressed that the foregoing doctrinal pronouncements are not without
support in substantive law. Notably, the Civil Code protects the actual possessor of a
property, to wit:
Art. 433. Actual possession under claim of ownership raises a disputable
presumption of ownership. The true owner must resort to judicial process for the
recovery of the property.
Under the aforequoted provision, one who claims to be the owner of a property
possessed by another must bring the appropriate judicial action for its physical
recovery. The term “judicial process” could mean no less than an ejectment suit or
reinvindicatory action, in which the ownership claims of the contending parties may be
properly heard and adjudicated.
An ex-parte petition for issuance of a possessory writ under Section 7 of Act No.
3135 is not, strictly speaking, a “judicial process” as contemplated above. Even if the
same may be considered a judicial proceeding for the enforcement of one’s right of
possession as purchaser in a foreclosure sale, it is not an ordinary suit filed in court,
by which one party “sues another for the enforcement or protection of a right, or the
prevention or redress of a wrong.”
It should be emphasized that an ex-parte petition for issuance of a writ of
possession is a non-litigious proceeding authorized in an extrajudicial foreclosure of
mortgage pursuant to Act 3135, as amended. Unlike a judicial foreclosure of real
estate mortgage under Rule 68 of the Rules of Court, any property brought within the
ambit of the act is foreclosed by the filing of a petition, not with any court of justice,
but with the office of the sheriff of the province where the sale is to be made.
As such, a third person in possession of an extrajudicially foreclosed realty, who
claims a right superior to that of the original mortgagor, will have no opportunity to be
heard on his claim in a proceeding of this nature. It stands to reason, therefore, that
such third person may not be dispossessed on the strength of a mere ex-
parte possessory writ, since to do so would be tantamount to his summary ejectment,
in violation of the basic tenets of due process.
Besides, as earlier stressed, Article 433 of the Civil Code, cited above, requires
nothing less than an action for ejectment to be brought even by the true owner. After
all, the actual possessor of a property enjoys a legal presumption of just title in his
favor, which must be overcome by the party claiming otherwise.
In the case at bar, petitioner PNB admitted that as early as 1990, it was aware
that the subject lot was occupied by the Austrias. Yet, instead of bringing an action in
court for the ejectment of respondents, it chose to simply file an ex-parte petition for a
writ of possession pursuant to its alleged right as purchaser in the extra-judicial
foreclosure sale. We cannot sanction this procedural shortcut. To enforce the writ
against an unwitting third party possessor, who took no part in the foreclosure
proceedings, would be tantamount to the taking of real property without the benefit of
proper judicial intervention.
Consequently, it was not a ministerial duty of the trial court under Act No. 3135 to
issue a writ of possession for the ouster of respondents from the lot subject of this
instant case. The trial court was without authority to grant the ex-parte writ, since
petitioner PNB’s right of possession under said Act could be rightfully recognized only
against the Monsods and the latter’s successors-in-interest, but not against
respondents who assert a right adverse to the Monsods. Hence, the trial court cannot
be precluded from correcting itself by refusing to enforce the writs it had previously
issued. Its lack of authority to direct issuance of the writs against respondents
assured that its earlier orders would never attain finality in the first place.
 In the same vein, respondents are not obliged to prove their ownership of the
foreclosed lot in the ex-parte proceedings conducted below. The trial court has no
jurisdiction to determine who between the parties is entitled to ownership and
possession of the foreclosed lot.

Likewise, registration of the lot in petitioner PNB’s name does not automatically entitle
the latter to possession thereof. As discussed earlier, petitioner PNB must resort to
the appropriate judicial process for recovery of the property and cannot simply invoke
its title in an ex-parte proceeding to justify the ouster of respondents.

WHEREFORE, the instant petition is DENIED and the resolution of the Court of
Appeals in CA-G.R. SP No. 48660 is AFFIRMED.
SO ORDERED.
     
Note.—The purchaser in a foreclosure sale is entitled to possession of the property.
(Suico Industrial Corporation vs. Court of Appeals, 301 SCRA 212 [1999])

——o0o——
 G.R. No. 155110. March 31, 2005.
HABAGAT GRILL Through LOUIE BIRAOGO, Proprietor/Manager,
petitioner, vs. DMC-URBAN PROPERTY DEVELOPER, INC., respondent.
Actions; Elements; Jurisdictions; Pleadings and Practice; Jurisdiction in ejectment cases
is determined by the allegations pleaded in the complaint.—Jurisdiction in ejectment cases is
determined by the allegations pleaded in the complaint. As long as these allegations
demonstrate a cause of action either for forcible entry or for unlawful detainer, the court acquires
jurisdiction over the subject matter. This principle holds, even if the facts proved during the trial
do not support the cause of action thus alleged, in which instance the court—after acquiring
jurisdiction—may resolve to dismiss the action for insufficiency of evidence.
Evidence; Words and Phrases; “Preponderance of evidence” means that the evidence
adduced by one side is, as a whole, superior to or has greater weight than that of the other.
—“Preponderance of evidence” means that the evidence adduced by one side is, as a whole,
superior to or has greater weight than that of the other. Where the evidence presented by one
side is insufficient to ascertain the claim, there is no preponderance of evidence. In criminal
cases in which the quantum of evidence required is greater than in civil cases, the testimony of
only one witness—if credible, straightforward, and worthy of belief—is sufficient to convict. With
more reason then, Garcia’s testimony, if clear and positive, may be sufficient to establish
respondent’s claim.
Same; Witnesses; Among the facts and circumstances to be considered by the court in
determining which of the presented evidence has superior weight is the witnesses’ means and
opportunity to know the facts to which they testify; Considerations in Determining the Extent of
Witnesses’ Means and Opportunity to Know the Facts.— Under Section 1 of Rule 133 of the
Rules of Court, among the facts and circumstances to be considered by the court in determining
which of the presented evidence has superior weight is the witnesses’ means and opportunity to
know the facts to which they testify. The extent of such means and opportunity are determined
by the following considerations: “First, the ‘Actor Rule.’ This rule maintains that a person’s
recollection of his own acts and of the attendant circumstances is more definite and trustworthy
than another person’s recollection of it, especially if it was an act done in the performance of a
duty, or if the other person’s testimony is little more than an expression of opinion or judgment.
Apart from comparative tenacity of memory, the actor usually knows better than any one else
what he did or did not do, and his testimony is generally, but not always, entitled to superior
weight on that account. Thus, the execution and attestation of a will or other legal document may
be so far regarded as the act of the lawyer who superintends the transactions and knows the
formalities required by law, and his testimony to the circumstances will generally outweigh that
of a non-professional witness. “The ‘Actor Rule’ has been applied in a multitude of admiralty
cases and any other cases where a person’s testimony concerning his own conduct conflicts
with the testimony of a non-participating observer or with inconclusive inferences from facts
proved, especially where the ‘actor’ witness testifies to an act which the duties of his
employment required him to perform. But it said that the testimony of one who evidently speaks
rather to his custom than to his acts on the particular occasion will hardly suffice to put him in the
category of those who are specially favored by the Actor Rule. “Second, the witness who had
the greater interest in noticing and remembering the facts is to be believed in preference to the
one that had a slighter interest to observe or was wholly indifferent. Interest has effect on the
power of observation of witness. Thus, it has been held that it was not remarkable that
witnesses would not have observed traces of blood along the route through which the deceased
was taken because said witnesses had no reason to suspect that the crime was not committed
in the place where the dead body was found. Similarly, the failure of witnesses to notice whether
or not there were houses at the place where they say the accused maltreat the offended party
was attributed as due to the fact that their attention was concentrated to what they say, and they
had no interest in knowing whether or not there were houses in or around the place. “Third, the
witness who gives reasons for the accuracy of his observations is preferred to him who merely
states the fact to be so, without adverting to any circumstances showing that his attention was
particularly called to it. Thus, the testimony of the crew of a vessel that their light on the night of
a collision was red, and nothing more, was easily overcome by testimony of witnesses on the
other vessel that the light was white, not red, and that fact was a matter of remark among them
when the light was observed. “Fourth, the witness in a state of excitement, fear, or terror is
generally incapable of observing accurately. This is so because, if men perceive the most
insignificant facts in the most diverse ways, even when it is impossible that these facts should
produce on the observer any emotion preventing him from observing with absolute calm, even
much more will their impressions be diversified under circumstances calculated to produce in the
onlookers excitement, fear or terror. “Fifth, intoxication tends to impair accuracy both of
observation and memory of a witness.”
Same; Same; Relationship will not by itself determine the true worth of one’s testimony—
the essential test is whether such testimony is disencumbered, credible, and in accord with
human experience.— The lower courts dismissed the testimony of Garcia—regardless of how
clear, positive and straightforward it was—solely on the ground that he was not a disinterested
witness. True, he was an employee of respondent; relationship, however, will not by itself
determine the true worth of one’s testimony. The essential test is whether such testimony is
disencumbered, credible, and in accord with human experience. It cannot easily be dismissed by
the mere invocation of the witness’ relationship with respondent. In sum, we have no reason to
disagree with the CA’s evaluation that, being credible, Garcia’s direct testimony was sufficient to
establish respondent’s claim that petitioner had entered the premises on December 1, 1993.
Same; Judicial Notice; Municipal Ordinances; Words and Phrases; Judicial notice is the
cognizance of certain facts which judges may properly take and act on without proof because
they already know them; Municipal courts may take judicial notice of the municipal ordinances in
force in the municipality in which they sit, but such notice is limited to what the law is and what it
states.— “Judicial notice is the cognizance of certain facts which judges may properly take and
act on without proof because they already know them.” Its object is to save time, labor and
expense in securing and introducing evidence on matters that are not ordinarily capable of
dispute or actually bona fide disputed, and the tenor of which can safely be assumed from the
tribunal’s general knowledge or from a slight search on its part. Indeed, municipal courts may
take judicial notice of the municipal ordinances in force in the municipality in which they sit. Such
notice, however, is limited to what the law is and what it states.
Same; Same; A court may take discretionary judicial notice where the boundaries of the
lot covered by the law are not a matter of public knowledge capable of unquestionable
demonstration.—The location of Habagat Grill cannot be resolved by merely taking judicial
notice of Presidential Proclamation No. 20; such location is precisely at the core of the dispute in
this case. Moreover, considering respondent’s allegation that the supposed lot covered by the
Ordinance has been lost due to inundation by the sea, we cannot fathom how the trial court
could have known of the actual location of the metes and bounds of the subject lot. Neither may
the MTC take discretionary judicial notice under Section 2 of Rule 129 of the Rules of Court,
because the exact boundaries of the lot covered by that law are not a matter of public
knowledge capable of unquestionable demonstration. Neither may these be known to judges
because of their judicial functions. Hence, the CA was correct in disregarding the findings of the
trial courts, because they had erred in taking judicial notice of the exact metes and bounds of the
property. The appellate court aptly relied on the Report submitted by the survey team that had
been constituted by the trial court, precisely for the purpose of determining the location of
Habagat Grill in relation to respondent’s lot.
Same; Ejectment; There is only one issue in ejectment proceed-ings—who is entitled to
physical or material possession of the premises, that is, to possession de facto, not possession
de jure?—There is only one issue in ejectment proceedings: who is entitled to physical or
material possession of the premises; that is, to possession de facto, not possession de jure?
Issues as to the right of possession or ownership are not involved in the action; evidence
thereon is not admissible, except only for the purpose of determining the issue of possession.
 Same; Same; Words and Phrases; “Forcible Entry” and “Unlaw-ful Detainer,”
Distinguished.—The two forms of ejectment suits—forcible entry or unlawful detainer—may be
distinguished from each other mainly by the fact that in forcible entry, the plaintiffs must prove
that they were in prior possession of the premises until they were deprived thereof by the
defendant; in unlawful detainer, the plaintiff need not have been in prior physical possession.
Same; Same; Possession; Possession can be acquired not only by material occupation
but also by the fact that a thing is subject to the action of one’s will or by the proper acts and
legal formalities established for acquiring such right.—Spouses Benitez v. CA has held that
possession can be acquired not only by material occupation, but also by the fact that a thing is
subject to the action of one’s will or by the proper acts and legal formalities established for
acquiring such right. Possession can be acquired by juridical acts. “These are acts to which the
law gives the force of acts of possession. Examples of these are donations, succession, x x x
execution and registration of public instruments, and the inscription of possessory information
titles.” For one to be considered in possession, one need not have actual or physical occupation
of every square inch of the property at all times. In the present case, prior possession of the lot
by respondent’s predecessor was sufficiently proven by evidence of the execution and
registration of public instruments and by the fact that the lot was subject to its will from then until
December 1, 1993, when petitioner unlawfully entered the premises and deprived the former of
possession thereof.
PANGANIBAN, J.:
Entitlement to physical or material possession of the premises is the issue in an
ejectment suit. The two forms of ejectment suits—forcible entry and unlawful detainer
—may be distinguished from each other mainly by the fact that in forcible entry, the
plaintiffs must prove that they were in prior possession of the premises until they were
deprived thereof by the defendants; in unlawful detainer, the plaintiffs need not have
been in prior physical possession.
The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court, challenging the
April 12, 2002 Decision and the August 19, 2002 Resolution of the Court of Appeals
(CA) in CA-GR SP No. 53524. The assailed Decision disposed as follows:
“WHEREFORE, finding merit in the petition, the Court REVERSES the appealed
Decision and renders judgment:
1.Commanding [Petitioner] Louie Biraogo and all persons acting for and
in his behalf or by his authority to remove the Habagat Grill and all
improvements he has introduced into the lot in question and to vacate
said lot; and
2.Ordering said [petitioner] to pay the [respondent] P10,000.00 monthly
compensation for the occupation of the land in question until the
possession from December 1, 1993 of said property shall have been
completely restored to the [respondent]; and
3.Ordering [petitioner] to pay [respondent] P10,000.00 as attorney’s
fees.”
The assailed Resolution denied petitioner’s Motion for Reconsideration.
The Facts
The antecedents were ably summarized by the CA as follows:
“On June 11, 1981, David M. Consunji, Inc. acquired and became the owner of a
residential lot situated in Matina, Davao City and covered by TCT No. T-82338.
This lot shall henceforth be called the lot in question. On June 13, 1981, David M.
Consunji, Inc. transferred said lot to its sister company, the DMC Urban Property
Developers, Inc. (DMC) in whose favor TCT No. T-279042 was issued. Alleging
that Louie Biraogo forcibly entered said lot and built thereon the Habagat Grill in
December, 1993, DMC filed on March 28, 1994 a Complaint for Forcible Entry
against Habagat Grill and/or Louie Biraogo. The Complaint was docketed as Civil
Case No. 1233-D-94 in the Municipal Trial Court in Cities, Branch 4, in Davao
City. The Complaint alleged that as owner DMC possessed the lot in question
from June 11, 1981 until December 1, 1993; that on that day, December 1, 1993,
Louie Biraogo, by means of strategy and stealth, unlawfully entered into the lot in
question and constructed the Habagat Grill thereon, thus illegally depriving DMC
of the possession of said lot since then up to the present; that the reasonable
rental value of said lot is P10,000.00 a month.
“Louie Biraogo in his Answer denied illegally entering the lot in question. He
averred that Habagat Grill was built in 1992 inside Municipal Reservation No.
1050 (Presidential Proclamation No. 20) and so DMC has no cause of action
against him. Since one of the vital issues in the case was the location of Habagat
Grill, the Municipal Trial Court in Cities constituted a team composed of three
members, one a Geodetic Engineer representing the DMC, another Geodetic
Engineer representing Biraogo and the third from the DENR which was tasked
with the duty of determining where precisely was Habagat Grill located, on the lot
in question or on Municipal Reservation No. 1050. Biraogo was directed by the
court to furnish the team with a copy of Municipal Reservation No. 20. Biraogo
never complied. Worse, his designated Geodetic Engineer Panfilo Jayme never
took oath as such and did not participate in the Relocation survey. The ones who
conducted the survey were Engr. Edmindo Dida of the DENR and Engr. Jose
Cordero, DMC’s representative. After conducting the relocation survey on March
30, 1998, engineers Dida and Cordero submitted their report to the Court
specifically stating that the Habagat Grill Restaurant was occupying 934 square
meters of the lot in question.
“After necessary proceedings, the Municipal Trial Court in Cities rendered a
Decision on August 6, 1998 dismissing the case on the ground of lack of
jurisdiction and lack of cause of action. DMC appealed from said Decision to the
Regional Trial Court and the same was docketed in Branch 12, in Davao City as
Civil Case No. x x x 26,860.98. On February 16, 1999, said court rendered
judgment affirming the appealed Decision. A Motion for Reconsideration was
filed but was denied in the court’s Order dated April 21, 1999.”
Consequently, respondent interposed an appeal to the CA.
Ruling of the Court of Appeals
Granting respondent’s appeal, the Court of Appeals ruled that the court of origin had
jurisdiction over the Complaint for Forcible Entry. The CA gave greater weight to the
testimony of respondent’s real property manager, Bienamer Garcia, that Habagat Grill
had been built on December 1, 1993. The appellate court opined that his testimony
was credible, because he had personal knowledge of the facts he had testified to—it
was his task to know such matters. On the other hand, it was not clear in what
capacity petitioner’s witness, Samuel Ruiz, came to know of the facts he had testified
to. The CA further held that the minutes of the Urban Planning and Economic
Development hearings—submitted by petitioner to prove the construction of Habagat
Grill in 1992—were immaterial, as these referred to another establishment.
The CA faulted petitioner for not presenting any other documentary evidence to
establish the date of Habagat Grill’s construction. It added that the court of origin had
improperly adjudged the subject property as part of the public domain. The appellate
court explained that the lower court could take cognizance of Presidential
Proclamation No. 20, but not of the situational relation between the property covered
by the Proclamation and the land in question. The CA further criticized petitioner for
not presenting any evidence to show the basis of the latter’s alleged authority to build
Habagat Grill on the property.
Hence, this Petition.
The Issues
In its Memorandum, petitioner raises the following issues for our consideration:
“1.That, with due respect, the Honorable Court of Appeals erred in not finding
that the Honorable Court of First Level has no jurisdiction over this case as
petitioner’s possession and occupation of the lot where Habagat Grill was
constructed on the subject premises was yet in 1992 or for more than one (1)
year prior to the filing of this case on April 7, 1994 and that respondent’s
predecessor (David M. Consunji, Inc.) had not been in prior and physical
possession of the subject premises, as a matter of fact, it failed to allege the
same in its Complaint in this case; and
“2.That, with due respect, the Honorable Court of Appeals erred in not finding
that the Complaint of respondent’s predecessor (David M. Consunji, Inc.) in this
case failed to state a valid cause of action as the lot referred to therein is not
particularly described and is different from the lot on which the Habagat Grill was
constructed.”
Simplified, the issues are (1) whether the MTC had jurisdiction over the case, and (2)
whether respondent alleged a sufficient cause of action in its Complaint.
This Court’s Ruling
The Petition has no merit.
First Issue: Jurisdiction
Petitioner argues that the lower court did not acquire jurisdiction over the case,
because mere allegation of ownership did not, by itself, show that respondent had
prior possession of the property.
We disagree. Jurisdiction in ejectment cases is determined by the allegations
pleaded in the complaint. As long as these allegations demonstrate a cause of action
either for forcible entry or for unlawful detainer, the court acquires jurisdiction over the
subject matter. This principle holds, even if the facts proved during the trial do not
support the cause of action thus alleged, in which instance the court—after acquiring
jurisdiction—may resolve to dismiss the action for insufficiency of evidence.
The necessary allegations in a Complaint for ejectment are set forth in Section 1
of Rule 70 of the Rules of Court, which reads thus:
SECTION 1. Who may institute proceedings, and when.—Subject to the
provisions of the next succeeding section, a person deprived of the possession of
any land or building by force, intimidation, threat, strategy, or stealth, or a lessor,
vendor, vendee, or other person against whom the possession of any land or
building is unlawfully withheld after the expiration or termination of the right to
hold possession, by virtue of any contract, express or implied, or the legal
representatives or assigns of any such lessor, vendor, vendee, or other person,
may, at any time within one (1) year after such unlawful deprivation or
withholding of possession, bring an action in the proper Municipal Trial Court
against the person or persons unlawfully withholding or depriving of possession,
or any person or persons claiming under them, for the restitution of such
possession, together with damages and costs.
In the present case, the Complaint filed before the trial court on March 28, 1994,
stated:
“2.That [respondent] had been in lawful and peaceful possession of a residential
lot at Tulip Drive, Ecoland and Subdivision covered by TCT T-82338 of the
Registry of Deeds of Davao City being owner thereof, since June 11, 1981, until
the day and incident in the following paragraph hereof.
“3.That on or about December 1, 1993, [petitioner] by means of strategy and
stealth, unlawfully entered and occupied a portion of said residential lot and
constructed what is now known as the ‘Habagat Grill’, thereby illegally depriving
[respondent] of the possession of the premises.”
Notably, petitioner alleged (1) prior possession, (2) deprivation thereof by strategy
and stealth, and (3) the date such unlawful deprivation started, which was less than
one year from the filing of the Complaint. Considering the presence in the Complaint
of all the necessary allegations, the trial court evidently acquired jurisdiction over the
subject matter of the case.
Date of Entry
Petitioner further contends that, as determined by the court of origin and the regional
trial court, respondent has not adduced preponderance of evidence to prove that this
case was filed within the one-year prescriptive period. Petitioner presented the
testimony of a certain Samuel Ruiz and offered the minutes of the hearings
conducted by the Urban Planning and Economic Development (UPED) to prove that
the construction of the Habagat Grill began in 1992.
Respondent counters that the CA properly relied on the testimony of the former’s
real property manager, Bienamer Garcia, as he had personal knowledge of the facts.
On the other hand, the two trial courts allegedly relied on the hearings conducted by
the UPED in resolving that petitioner had been in possession of the property since
1992. Respondent avers that those hearings referred to a restaurant located 330
meters away, not to Habagat Grill.
The determination of the date of entry into the subject lot is a question of fact.
This Court has held in a long line of cases that the review of cases brought before
it via Rule 45 of the Rules of Court is limited to errors of law. Findings of fact by the
CA are conclusive except in a number of instances, one of which is when its factual
findings are contrary to those of the courts below, as in the present case.
The appellate court held that the minutes of the UPED hearing pertained to
matters relating to a different establishment, the Kawayan Restaurant. Thus, the
UPED minutes did not have any material bearing on the resolution of the present
case. Consequently, the determination of the date of entry into the subject lot boils
down to the appreciation of the testimonies of Garcia and Ruiz.
“Preponderance of evidence” means that the evidence adduced by one side is, as
a whole, superior to or has greater weight than that of the other. Where the evidence
presented by one side is insufficient to ascertain the claim, there is no preponderance
of evidence. In criminal cases in which the quantum of evidence required is greater
than in civil cases, the testimony of only one witness—if credible, straightforward, and
worthy of belief—is sufficient to convict. With more reason then, Garcia’s testimony, if
clear and positive, may be sufficient to establish respondent’s claim.
 Under Section 1 of Rule 133 of the Rules of Court, among the facts and
circumstances to be considered by the court in determining which of the presented
evidence has superior weight is the witnesses’ means and opportunity to know the
facts to which they testify.
The extent of such means and opportunity are determined by the following
considerations:
“First, the ‘Actor Rule.’ This rule maintains that a person’s recollection of his own
acts and of the attendant circumstances is more definite and trustworthy than
another person’s recollection of it, especially if it was an act done in the
performance of a duty, or if the other person’s testimony is little more than an
expression of opinion or judgment. Apart from comparative tenacity of memory,
the actor usually knows better than any one else what he did or did not do, and
his testimony is generally, but not always, entitled to superior weight on that
account. Thus, the execution and attestation of a will or other legal document
may be so far regarded as the act of the lawyer who superintends the
transactions and knows the formalities required by law, and his testimony to the
circumstances will generally outweigh that of a non-professional witness.
“The ‘Actor Rule’ has been applied in a multitude of admiralty cases and any
other cases where a person’s testimony concerning his own conduct conflicts
with the testimony of a non-participating observer or with inconclusive inferences
from facts proved, especially where the ‘actor’ witness testifies to an act which
the duties of his employment required him to perform. But it said that the
testimony of one who evidently speaks rather to his custom than to his acts on
the particular occasion will hardly suffice to put him in the category of those who
are specially favored by the Actor Rule.
“Second, the witness who had the greater interest in noticing and
remembering the facts is to be believed in preference to the one that had a
slighter interest to observe or was wholly indifferent. Interest has effect on the
power of observation of witness. Thus, it has been held that it was not
remarkable that witnesses would not have observed traces of blood along the
route through which the deceased was taken because said witnesses had no
reason to suspect that the crime was not committed in the place where the dead
body was found. Similarly, the failure of witnesses to notice whether or not there
were houses at the place where they say the accused maltreat the offended
party was attributed as due to the fact that their attention was concentrated to
what they say, and they had no interest in knowing whether or not there were
houses in or around the place.
“Third, the witness who gives reasons for the accuracy of his observations is
preferred to him who merely states the fact to be so, without adverting to any
circumstances showing that his attention was particularly called to it. Thus, the
testimony of the crew of a vessel that their light on the night of a collision was
red, and nothing more, was easily overcome by testimony of witnesses on the
other vessel that the light was white, not red, and that fact was a matter of
remark among them when the light was observed.
“Fourth, the witness in a state of excitement, fear, or terror is generally
incapable of observing accurately. This is so because, if men perceive the most
insignificant facts in the most diverse ways, even when it is impossible that these
facts should produce on the observer any emotion preventing him from observing
with absolute calm, even much more will their impressions be diversified under
circumstances calculated to produce in the onlookers excitement, fear or terror.
“Fifth, intoxication tends to impair accuracy both of observation and memory
of a witness.” (Citations omitted)
Based on the foregoing criteria, the testimony of Garcia must be given greater weight,
considering that it was his task—as the real property manager of respondent—to
know about matters involving the latter’s properties. In contrast, it was not explained
how Ruiz could be deemed competent and credible in his testimony as to those
matters.
The lower courts dismissed the testimony of Garcia—regardless of how clear,
positive and straightforward it was—solely on the ground that he was not a
disinterested witness. True, he was an employee of respondent; relationship,
however, will not by itself determine the true worth of one’s testimony. The essential
test is whether such testimony is disencumbered, credible, and in accord with human
experience. It cannot easily be dismissed by the mere invocation of the witness’
relationship with respondent. In sum, we have no reason to disagree with the CA’s
evaluation that, being credible, Garcia’s direct testimony was sufficient to establish
respondent’s claim that petitioner had entered the premises on December 1, 1993.
Second Issue: Cause of Action
Petitioner avers that no cause of action was alleged by respondent, as shown by the
following circumstances: (1) the latter’s property was not encroached upon by
Habagat Grill, which had allegedly been constructed on a portion of land owned by
the City Government of Davao; and (2) respondent failed to prove that its
predecessor-in-interest had prior possession of the property.
On the other hand, respondent argues that the trial court indiscriminately ignored
the Report of the survey team that had been constituted to determine the exact
location of Habagat Grill. Respondent further contends that the trial court erred in
taking judicial notice of the metes and bounds of the property covered by Presidential
Proclamation No. 20. Although the lower court may take judicial notice of PD No. 20, it
may not do so in regard to the metes and bounds of Times Beach. Neither, may it
claim knowledge of the situational relation between the land in question and Times
Beach.
Location of the Property
We agree with respondent. “Judicial notice is the cognizance of certain facts which
judges may properly take and act on without proof because they already know them.”
Its object is to save time, labor and expense in securing and introducing evidence on
matters that are not ordinarily capable of dispute or actually bona fide disputed, and
the tenor of which can safely be assumed from the tribunal’s general knowledge or
from a slight search on its part.
Indeed, municipal courts may take judicial notice of the municipal ordinances in
force in the municipality in which they sit. Such notice, however, is limited to what the
law is and what it states. As can be gleaned from its discussions, the trial court took
judicial notice of the existence of Presidential Proclamation No. 20, which declared
Times Beach a recreation center. The MTC also took judicial notice of the location of
the beach, which was from the shoreline to the “road towards the shoreline.” On the
basis of these premises, the trial court resolved that the lot on which petitioner’s
restaurant was located should necessarily be inside Times Beach, which was owned
by the City of Davao. Hence, it was the City—not respondent—that had a cause of
action against petitioner. To arrive at this conclusion, the MTC made its own estimate
of the location of the metes and bounds of the property mentioned by the law.
The location of Habagat Grill cannot be resolved by merely taking judicial notice
of Presidential Proclamation No. 20; such location is precisely at the core of the
dispute in this case. Moreover, considering respondent’s allegation that the supposed
lot covered by the Ordinance has been lost due to inundation by the sea, we cannot Notes.—The assessment of the trial court of the credibility of witnesses is entitled to great
fathom how the trial court could have known of the actual location of the metes and respect and weight for having had the opportunity of observing the conduct and demeanor of the
bounds of the subject lot. witnesses while testifying. (Lustan vs. Court of Appeals, 266 SCRA 663 [1997])

It is of judicial notice that people in rural communities generally know each other both by
Neither may the MTC take discretionary judicial notice under Section 2 of Rule face and name. (People vs. Caguing, 347 SCRA 374 [2000])
129 of the Rules of Court, because the exact boundaries of the lot covered by that
law are not a matter of public knowledge capable of unquestionable demonstration.
Neither may these be known to judges because of their judicial functions. ——o0o——
Hence, the CA was correct in disregarding the findings of the trial courts, because
they had erred in taking judicial notice of the exact metes and bounds of the property.
The appellate court aptly relied on the Report submitted by the survey team that had
been constituted by the trial court, precisely for the purpose of determining the
location of Habagat Grill in relation to respondent’s lot.

Prior Possession

Finally, petitioner avers that respondent failed to prove that the latter’s predecessor-
in-interest had prior possession of the property. Conversely, respondent alleges that
its predecessor was in prior physical possession of the property as the registered
owner thereof since June 11, 1981. Again, we rule for respondent.

There is only one issue in ejectment proceedings: who is entitled to physical or

material possession of the premises; that is, to possession de facto, not
possession de jure? Issues as to the right of possession or ownership are not
involved in the action; evidence thereon is not admissible, except only for the purpose
of determining the issue of possession.

The two forms of ejectment suits—forcible entry or unlawful detainer—may be

distinguished from each other mainly by the fact that in forcible entry, the plaintiffs
must prove that they were in prior possession of the premises until they were
deprived thereof by the defendant; in unlawful detainer, the plaintiff need not have
been in prior physical possession.

Spouses Benitez v. CA has held that possession can be acquired not only by material
occupation, but also by the fact that a thing is subject to the action of one’s will or by
the proper acts and legal formalities established for acquiring such right.

Possession can be acquired by juridical acts. “These are acts to which the law
gives the force of acts of possession. Examples of these are donations, succession, x
x x execution and registration of public instruments, and the inscription of possessory
information titles.” For one to be considered in possession, one need not have actual
or physical occupation of every square inch of the property at all times. In the present
case, prior possession of the lot by respondent’s predecessor was sufficiently proven
by evidence of the execution and registration of public instruments and by the fact
that the lot was subject to its will from then until December 1, 1993, when petitioner
unlawfully entered the premises and deprived the former of possession thereof.

WHEREFORE, the Petition is DENIED and the challenged Decision and

Resolution AFFIRMED. Costs against petitioner.
SO ORDERED.