[G.R. No. 128102. March 7, 2000] AZNAR BROTHERS REALTY COMPANY, petitioner, vs.

COURT OF APPEALS, LUIS AYING, DEMETRIO SIDA, FELOMINO AUGUSTO, FEDERICO ABING, and ROMEO AUGUSTO, respondents. DECISION DAVIDE, JR., C.J.: This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court seeking to reverse and set aside the 26 March 1996 Decision[1] of the Court of Appeals declaring the private respondents the rightful possessors de facto of the subject lot and permanently enjoining Sheriff Juan Gato or his representative from effecting the demolition of private respondents houses. Culled from the evidence proffered by petitioner Aznar Brothers Realty Co. (hereafter AZNAR), it appears that Lot No. 4399 containing an area of 34,325 square meters located at Brgy. Mactan, Lapu-Lapu City, was acquired by AZNAR from the heirs of Crisanta Maloloy-on by virtue of an Extrajudicial Partition of Real Estate with Deed of Absolute Sale dated 3 March 1964. This deed was registered with the Register of Deeds of LapuLapu City on 6 March 1964 as shown on the face thereof. After the sale, petitioner AZNAR declared this property under its name for taxation purposes and regularly paid the taxes thereon. Herein private respondents were allegedly allowed to occupy portions of Lot No. 4399 by mere tolerance provided that they leave the land in the event that the company would use the property for its purposes. Later, AZNAR entered into a joint venture with Sta. Lucia Realty Development Corporation for the development of the subject lot into a multimillion peso housing subdivision and beach resort. When its demands for the private respondents to vacate the land failed, AZNAR filed with the Municipal Trial Court (MTCC) of Lapu-Lapu City a case for unlawful detainer and damages, which was docketed as Civil Case No. R-1027. On the other hand, the private respondents alleged that they are the successors and descendants of the eight children of the late Crisanta Maloloy-on, whose names appear as the registered owners in the Original Certificate

of Title No. RC-2856. They had been residing and occupying the subject portion of the land in the concept of owner since the time of their parents and grandparents, except for Teodorica Andales who was not a resident in said premises. Private respondents claimed that the Extrajudicial Partition of Real Estate with Deed of Absolute Sale is void ab initio for being simulated and fraudulent, and they came to know of the fraud only when AZNAR entered into the land in the last quarter of 1991 and destroyed its vegetation. They then filed with the Regional Trial Court (RTC) of Lapu-Lapu City a complaint seeking to declare the subject document null and void. This case was docketed as Civil Case No. 2930-L. On 1 February 1994, the MTCC rendered a decision ordering the private respondents to (a) vacate the land in question upon the finality of the judgment; and (b) pay P8,000 as attorneys fees and P2,000 as litigation expenses, plus costs.[2] The MTCC delved into the issue of ownership in order to resolve the issue of possession. It found that petitioner AZNAR acquired ownership of Lot No. 4399 by virtue of the Extrajudicial Partition of Real Estate with Deed of Absolute Sale executed by the Heirs of Crisanta Maloloy-on on 3 March 1964, which was registered with the Register of Deeds of Lapu-Lapu City on 6 March 1964 as appearing on the face thereof. Private respondents allegation that two of the signatories were not heirs of the registered owners; that some of the signatories were already dead at the date of the execution of the deed; and that many heirs were not parties to the extrajudicial partition is a form of a negative pregnant, which had the effect of admitting that the vendors, except those mentioned in the specific denial, were heirs and had the legal right to sell the subject land to petitioner. The fact that some or most heirs had not signed the deed did not make the document null and void ab initio but only annullable, unless the action had already prescribed. Since the private respondents occupied the land merely by tolerance, they could be judicially ejected therefrom. That the Deed has not been annotated on OCT RO-2856 is of no moment, since said title was reconstituted only on 25 August 1988, while the subject Deed was executed on 3 March 1964. Lastly, the reconstituted title has not as yet been transferred to a purchaser for value. Aggrieved by the decision of the MTCC, private respondents appealed to the RTC.

During the pendency of the appeal, or on 8 March 1994, the RTC, upon Aznars ex parte motion, issued an order granting the issuance of a writ of execution pursuant to Section 8, Rule 70 of the Revised Rules of Court in view of the failure of private respondents to put up a supersedeas bond. A week later, a writ of execution was issued. The sheriff then served upon private respondents the said writ of execution together with a notice to vacate. On 11 April 1994, the sheriff padlocked their houses, but later in the day, private respondents re-entered their houses. Thus, on 6 May 1994, AZNAR filed an omnibus motion for the issuance of a writ of demolition, which private respondents opposed. This motion was set for hearing three times, but the parties opted to submit a consolidated memorandum and agreed to submit the same for resolution.[3] On 22 July 1994, the RTC affirmed the decision of the MTCC and ordered the issuance of a writ of demolition directing the sheriff to demolish private respondents houses and other improvements which might be found on the subject premises.[4] On 29 July 1994, a writ of demolition was issued, and notices of demolition were served upon private respondents. Per Sheriffs Report, [5] private respondents houses were demolished on 3 August 1994, except for two houses which were moved outside the premises in question upon the plea of the owners thereof. On appeal by the private respondents, the Court of Appeals reversed and set aside the decision of the RTC; declared the private respondents as the rightful possessors de facto of the land in question; and permanently enjoined Sheriff Juan Gato or whoever was acting in his stead from effectuating the demolition of the houses of the private respondents. In arriving at its challenged decision, the Court of Appeals noted that at the time AZNAR entered the property, the private respondents had already been in possession thereof peacefully, continuously, adversely and notoriously since time immemorial. There was no evidence that petitioner was ever in possession of the property. Its claim of ownership was based only on an Extrajudicial Partition with Deed of Absolute Sale, which private respondents, however, claimed to be null and void for being simulated and fraudulently obtained. The Court of Appeals

further held that where not all the known heirs had participated in the extrajudicial agreement of partition, the instrument would be null and void and therefore could not be registered. [6] Moreover, AZNAR was estopped to assert ownership of the property in question, since it had admitted in a pleading in the reconstitution proceedings that the property had never been conveyed by the decreed owners. Additionally, from 1988 up to the filing of the ejectment case on 4 August 1993, AZNAR never registered the extrajudicial partition despite opportunities to do so. Its allegation that private respondents occupied the property by mere tolerance was not proved. Pursuant to the ruling in Vda. de Legazpi v. Avendano, [7] the fact that the right of the private respondents was so seriously placed in issue and the execution of the decision in the ejectment case would have meant demolition of private respondents houses constituted an equitable reason to suspend the enforcement of the writ of execution and order of demolition. AZNAR then elevated the case to this Court, via this petition for review on certiorari, contending that respondent Court of Appeals erred in 1. ... reversing the judgments of the Municipal Trial Court and the Regional Trial Court of Lapu-Lapu City despite the finality of the judgments and the full implementation thereof; 2. ... invoking lack of prior physical possession over the land in question by the petitioner as one ground in its Decision sought to be reviewed; 3. ... holding that the Extrajudicial Partition with Deed of Absolute Sale was null and void; 4. ...holding that petitioner was in estoppel in pais when it made the allegation that the property was not sold or encumbered in its petition for reconstitution of title; 5. ... applying the ruling in the case of Vda. de Legazpi vs.

Avendano (79 SCRA 135 [1977]). We shall jointly discuss the first and fifth assigned errors for being interrelated with each other. In its first assigned error, petitioner argues that the decision of the MTCC of Lapu-Lapu City had become final and immediately executory in view of the undisputed failure of the private respondents to post a supersedeas bond as required by Section 8, Rule 70 of the Revised Rules of Court. We do not agree. Since the private respondents had seasonably filed an appeal with the RTC of Lapu-Lapu City, the judgment of the MTCC of Lapu-Lapu City did not become final. And for reasons hereunder stated, the perfection of the appeal was enough to stay the execution of the MTCC decision. Under the former Section 8, Rule 70 of the Rules of Court,[8] if the judgment of the municipal trial court in an ejectment case is adverse to the defendant, execution shall issue immediately. To stay the immediate execution of the judgment, the defendant must (1) perfect his appeal; (2) file a supersedeas bond to answer for the rents, damages, and costs accruing down to the time of the judgment appealed from; and (3) periodically deposit the rentals falling due during the pendency of the appeal.[9] As a rule, the filing of a supersedeas bond is mandatory and if not filed, the plaintiff is entitled as a matter of right to the immediate execution of the judgment. An exception is where the trial court did not make any findings with respect to any amount in arrears, damages or costs against the defendant, [10] in which case no bond is necessary to stay the execution of the judgment. Thus, in Once v. Gonzales,[11] this Court ruled that the order of execution premised on the failure to file a supersedeas bond was groundless and void because no such bond was necessary there being no back rentals adjudged in the appealed judgment. Similarly, in the instant case, there was no need for the private respondents to file a supersedeas bond because the judgment of the MTCC did not award rentals in arrears or damages. The attorneys fees of P8,000 and the litigation expenses of P2,000 awarded in favor of the petitioner need not be covered by

a bond, as these are not the damages contemplated in Section 8 of Rule 70 of the Rules of Court. The damages referred to therein are the reasonable compensation for the use and occupation of the property which are generally measured by its fair rental value and cannot refer to other damages which are foreign to the enjoyment or material possession of the property.[12] Neither were the private respondents obliged to deposit the rentals falling due during the pendency of the appeal in order to secure a stay of execution because the appealed judgment did not fix the reasonable rental or compensation for the use of the premises.[13] Hence, it was error for the RTC to order the execution of the judgment of the MTCC. At any rate, pursuant to Section 21 of the Revised Rules of Summary Procedure, the decision of the RTC affirming the decision of the MTCC has become immediately executory, without prejudice to the appeal before the Court of Appeals. The said Section repealed Section 10 of the Rules of Court allowing during the pendency of the appeal with the Court of Appeals a stay of execution of the RTC judgment with respect to the restoration of possession where the defendant makes a periodic deposit of rentals. Thus, immediate execution of the judgment becomes a ministerial duty of the court. No new writ of execution was, however, issued. Nevertheless, the writ of demolition thereafter issued was sufficient to constitute a writ of execution, as it substantially complied with the form and contents of a writ of execution as provided for under Section 8 of Rule 39 of the Rules of Court. Moreover, private respondents were duly notified and heard on the omnibus motion for the issuance of the writ of demolition and were given five days to remove their houses.[14] Invoking Legaspi v. Avendao,[15] the Court of Appeals held that there was an equitable reason to suspend the enforcement of the writ of execution and order of demolition until after the final determination of the civil case for the nullification of the Extrajudicial Partition with Deed of Absolute Sale. In Legaspi, this Court held: Where the action ... is one of illegal detainer ... and the right of the plaintiff to recover the premises is seriously placed in issue in a proper judicial proceeding, it is more equitable and just and less productive of

confusion and disturbance of physical possession, with all its concomitant inconvenience and expense [f]or the court in which the issue of legal possession, whether involving ownership or not, is brought to restrain, should a petition for preliminary injunction be filed with it, the effects of any order or decision in the unlawful detainer case in order to await the final judgment in the more substantive case involving legal possession or ownership. In the instant case, private respondents petition for review with prayer for the immediate issuance of a temporary restraining order (TRO) or preliminary injunction was mailed on 2 August 1994 but was received by the Court of Appeals only on 30 August 1994. Meanwhile, on 3 August 1994, the writ of demolition was implemented, resulting in the demolition of private respondents houses. Hence, any relevant issue arising from the issuance or enforcement of the writ had been rendered moot and academic. Injunction would not lie anymore, as the acts sought to have been enjoined had already become a fait accompli or an accomplished or consummated act. Now on the applicability to unlawful detainer cases of the requirement of prior physical possession of the disputed property. Contrary to the ruling of the Court of Appeals, prior physical possession by the plaintiff of the subject property is not an indispensable requirement in unlawful detainer cases, although it is indispensable in an action for forcible entry.[16]The lack of prior physical possession on the part of AZNAR is therefore of no moment, as its cause of action in the unlawful detainer case is precisely to terminate private respondents possession of the property in question.[17] We now come to the issue of the validity of the Extrajudicial Partition with Deed of Absolute Sale. In an action for ejectment, the only issue involved is possession de facto. However, when the issue of possession cannot be decided without resolving the issue of ownership, the court may receive evidence upon the question of title to the property but solely for the purpose of determining the issue of possession.
[18]

In the instant case, private respondents have set up the defense of ownership and questioned the title of AZNAR to the subject lot, alleging that the Extrajudicial Partition with Deed of Absolute Sale upon which petitioner bases its title is null and void for being simulated and fraudulently made. First, private respondents claim that not all the known heirs of Crisanta Maloloy-on participated in the extrajudicial partition, and that two persons who participated and were made parties thereto were not heirs of Crisanta. This claim, even if true, would not warrant rescission of the deed. Under Article 1104 of the Civil Code, "[a] partition made with preterition of any of the compulsory heirs shall not be rescinded, unless it be proved that there was bad faith or fraud on the part of the persons interested; but the latter shall be proportionately obliged to pay to the person omitted the share which belongs to him." In the present case, no evidence of bad faith or fraud is extant from the records. As to the two parties to the deed who were allegedly not heirs, Article 1105 is in point; it provides: "A partition which includes a person believed to be an heir, but who is not, shall be void only with respect to such person." In other words, the participation of non-heirs does not render the partition void in its entirety but only to the extent corresponding to them. Private respondents also allege that some of the persons who were made parties to the deed were already dead, while others were still minors. Moreover, the names of some parties thereto were misspelled, and others who knew how to read and write their names were made to appear to have affixed only their thumbmark in the questioned document. Likewise, the signatures of those who were made parties were forged. The foregoing are bare allegations with no leg to stand on. No birth or death certificates were presented before the MTCC to support the allegations that some of the parties to the deed were minors and others were already dead at the time of the execution of the deed. What private respondents adduced as evidence was merely a family tree, which was at most selfserving. It was only when the case was on appeal with the RTC that the private respondents presented as Annex "B" of their Memorandum and Appeal Brief a photocopy of the certificate of death of Francisco Aying, [19] son of Crisanta Maloloy-on, who reportedly died on 7 March 1963. This certificate was allegedly issued on 17 January 1992 by the

Parish Priest of Virgen de Regla Parish, LapuLapu City. The fact remains, however, that this photocopy was not certified to be a true copy. It is worthy to note that the Extrajudicial Partition with Deed of Absolute Sale is a notarized document. As such, it has in its favor the presumption of regularity, and it carries the evidentiary weight conferred upon it with respect to its due execution.[20] It is admissible in evidence without further proof of authenticity[21] and is entitled to full faith and credit upon its face.[22] He who denies its due execution has the burden of proving that contrary to the recital in the Acknowledgment he never appeared before the notary public and acknowledged the deed to be his voluntary act.[23] It must also be stressed that whoever alleges forgery has the burden of proving the same. Forgery cannot be presumed but should be proved by clear and convincing evidence. [24] Private respondents failed to discharge this burden of proof; hence, the presumption in favor of the questioned deed stands. Private respondents contend that there was violation of the Notarial Law because the lawyer who prepared and notarized the document was AZNARs representative in the execution of the said document. Under Section 22 of the Spanish Notarial Law of 1889, a notary public could not authenticate a contract which contained provisions in his favor or to which any of the parties interested is a relative of his within the fourth civil degree or second degree of affinity; otherwise, pursuant to Section 28 thereof, the document would not have any effect. This rule on notarial disqualification no longer holds true with the enactment of Act No. 496, which repealed the Spanish Notarial Law.[25] Under the Notarial Law in force at the time of the notarization of the questioned deed, Chapter 11 of the Revised Administrative Code, only those who had been convicted of any crime involving moral turpitude were disqualified to notarize documents. Thus, a representative of a person in whose favor a contract was executed was not necessarily so disqualified. Besides, there is no proof that Atty. Ramon Igaa was a representative of petitioner in 1964; what appears on record is that he was the Chief of the petitioners Legal Department in 1993. Additionally, this alleged violation of the Notarial Law was raised only now. Anent the non- annotation of the Extrajudicial Partition with Deed of Absolute Sale in the reconstituted Original Certificate of Title No. RO-2856, the same does not render the deed

legally defective. It must be borne in mind that the act of registering a document is never necessary to give the conveyance legal effect as between the parties[26] and the vendors heirs. As between the parties to a sale, registration is not indispensable to make it valid and effective. The peculiar force of a title is exhibited only when the purchaser has sold to innocent third parties the land described in the conveyance. The purpose of registration is merely to notify and protect the interests of strangers to a given transaction, who may be ignorant thereof, and the non-registration of the deed evidencing said transaction does not relieve the parties thereto of their obligations thereunder.[27] Here, no right of innocent third persons or subsequent transferees of the subject lot is involved; thus, the conveyance executed in favor of AZNAR by private respondents and their predecessors is valid and binding upon them, and is equally binding and effective against their heirs.[28] The principle that registration is the operative act that gives validity to the transfer or creates a lien upon the land "refers to cases involving conflicting rights over registered property and those of innocent transferees who relied on the clean title of the properties."[29] This principle has no bearing on the present case, as no subsequent transfer of the subject lot to other persons has been made either by private respondents or their predecessors-in-interest.
[30]

By and large, it appears on the face of the Extrajudicial Partition with Deed of Absolute Sale that the same was registered on 6 March 1964. The registration was under Act No. 3344 on unregistered lands allegedly because at the time, no title was existing in the files of the Register of Deeds of Lapu-Lapu City, as it was allegedly lost during the last world war. It was only on 8 August 1988 that the title was reconstituted at the instance of the petitioner. As to the fourth assigned error, we do not agree with the Court of Appeals and the private respondents that petitioner is in estoppel to assert ownership over the subject property because of petitioners own allegation in the petition for reconstitution, to wit: That certificates of title were issued thereto but were lost during the last world war. That the same were not conveyed much less offered as a collateral for any debt contracted or delivered for the

security of payment of any obligation in favor of any person or lending institution. The words "the same" in the second sentence of the afore-quoted paragraph clearly refers to the certificates of title. This means that the certificates of title, not necessarily the subject lot, were not conveyed or offered as a collateral but were lost during the last world war. Indeed, as petitioner contends, it would be very absurd and self-defeating construction if we were to interpret the above-quoted allegation in the manner that the Court of Appeals and the private respondents did, for how could petitioner, who is claiming ownership over the subject property, logically allege that the property was not sold to it? It bears repeating that petitioners claim of possession over the subject lot is anchored on its claim of ownership on the basis of the Extrajudicial Partition with Deed of Absolute Sale. Our ruling on the issue of the validity of the questioned deed is solely for the purpose of resolving the issue of possession and is to be regarded merely as provisional, without prejudice, however, to the final determination of the issue in the other case for the annulment or cancellation of the Extrajudicial Partition with Deed of Absolute Sale. WHEREFORE, the petition is GRANTED. The challenged decision of public respondent Court of Appeals in CA-G.R. SP No. 35060 is hereby REVERSED, and the decision of the Regional Trial Court, Branch 27, Lapu-Lapu City, is REINSTATED. Puno, Kapunan, Pardo, and Ynares-Santiago, JJ., concur. FIRST DIVISION [G.R. NO. 153625 : July 31, 2006] Heirs of MARCELINO CABAL, represented by VICTORIA CABAL, Petitioner, v.Spouses LORENZO CABAL1 and ROSITA CABAL, Respondents. Before the Court is a Petition for Review on Certiorari under Rule 45 of the 1997 Rules of Civil Procedure assailing the Decision 2 of the Court of Appeals (CA) dated September 27, 2001 in CA-G.R. SP No. 64729 which affirmed in toto the Decision of the Regional Trial Court, Branch 70, Iba, Zambales (RTC)

dated August 10, 2000 in Civil Case No. RTC1489-I; and the CA Resolution3 dated May 22, 2002 which denied the Motion for Reconsideration of Marcelino Cabal (Marcelino). The factual background of the case is as follows: During his lifetime, Marcelo Cabal (Marcelo) was the owner of a 4,234-square meter parcel of land situated at Barrio Palanginan, Iba, Zambales, described as Lot G and covered by Original Certificate of Title (OCT) No. 29 of the Registry of Deeds of Zambales. Sometime in August 1954,4 Marcelo died, survived by his wife Higinia Villanueva (Higinia) and his children: Marcelino, Daniel, Cecilio, Natividad, Juan, Margarita,Lorenzo, Lauro and Anacleto.5 It appears that sometime in 1949, five years before he died, Marcelo allowed his son, Marcelino, to build his house on a portion of Lot G, now the southernmost portion of Lot 1-E of Transfer Certificate of Title (TCT) No. 43419.6Since then, Marcelino resided thereon.7 Later, Marcelino's son also built his house on the disputed property.8 On August 17, 1964, Marcelo's heirs extrajudicially settled among themselves Lot G into undivided equal shares of 423.40-square meters each and Transfer Certificate of Title (TCT) No. T-8635 was issued in their names. 9 On September 17, 1973, Daniel sold 380 square meters of his 423.40-square meter undivided share to spouses Oscar Merete and Clarita Ebue.10 On September 12, 1976, the heirs subdivided Lot G into Lot G-1 in favor of Marcelino, resulting in the issuance of TCT No. T22656;11 and Lot G-2 in favor of Higinia, Daniel, Natividad, Juan, Cecilio, Margarita, Lorenzo, Lauro and Anacleto, resulting in the issuance of TCT No. 22657.12 On March 1, 1977, Marcelino mortgaged his share, as described under TCT No. 22656, to the Rural Bank of San Antonio (Zambales), Inc.13 The mortgage on the property was subsequently released on December 19, 1983.14 In the interim, based on consolidated subdivision plan (LRC) Pcd-24078, Lot G-2 was further subdivided and the remaining portion, known as Lot 1 of the subdivision plan,

comprising 3387.20 square meters, became subject of TCT No. T-24533 with Higinia, Margarita, Natividad, Lorenzo, Daniel, Oscar Merete, Cecilio, Carmelita C. Pagar, and Anacleto as co-owners. On August 3, 1978, the co-owners of Lot 1 executed a Deed of Agreement of Partition with Sale. Lot 1 was subdivided among the coowners with Higinia, Margarita, Natividad, Lorenzo, Cecilio, Carmelita C. Pagar and Anacleto, receiving 423.40 square meters each; Daniel, with 43.4 square meters; and Oscar Merete, with 380 square meters. 15 In the same deed, Lorenzo bought the shares of Higinia, Margarita, Daniel and Natividad. 16Thus, Lorenzo's share in the co-ownership amounted to 1,737 square meters. Likewise, in the same deed, Cecilio sold his share to a certain Marcela B. Francia.17 On January 13, 1982, a land survey was conducted on Lot 1 by Geodetic Engineer Dominador L. Santos and Junior Geodetic Engineer Eufemio A. Abay and based on the survey, they submitted subdivision survey plan (LRC) Psd-307100, designating the shares of Carmelita C. Pagar, Marcela B. Francia, spouses Oscar Merete and Clarita Ebue, Anacleto, and Lorenzo as Lots 1-A, 1-B, 1-C, 1-D and 1-E, respectively.18 The subdivision survey plan of Lot 1 was approved by the Director of the Bureau of Lands on May 7, 1982.19 On June 7, 1990, the co-owners of Lot 1 executed a Subdivision Agreement designating their shares based on the approved subdivision plan.20 On July 13, 1993, TCT No. 43419 covering Lot 1-E was issued in the name of Lorenzo.21 In the meantime, since the subdivision plan revealed that Marcelino and his son occupied and built their houses on a 423-square meter area located on the southernmost portion of Lot 1-E and not the adjacent lot designated as Lot G-1 under TCT No. T-22656, 22 the spouses Lorenzo and Rosita Cabal (respondents) confronted Marcelino on this matter which resulted to an agreement on March 1, 1989 to a re-survey and swapping of lots for the purpose of reconstruction of land titles.23 However, the agreed resurvey and swapping of lots did not materialize24 and efforts to settle the dispute in the barangay level proved futile.25 Hence, on August 10, 1994, respondents filed a complaint for Recovery of Possession with Damages against Marcelino before the Municipal Trial Court of Iba, Zambales (MTC),

docketed as Civil Case No. 735. They alleged that Marcelino introduced improvements in bad faith on their land with knowledge that the adjacent lot is titled in his name.26 On August 26, 1994, Marcelino filed his Answer with Counterclaim, contending that respondents have no cause of action against him because he has been in possession in good faith since 1949 with the respondents' knowledge and acquiescence. He further avers that acquisitive prescription has set in.27 On January 24, 1997, during the pendency of the trial of the case, Lorenzo died. Following trial on the merits, the MTC rendered on November 19, 1997 its Decision28 in favor of Marcelino, the dispositive portion of which reads: WHEREFORE, on the basis of the foregoing premises as adduced by this Court the plaintiff or their representatives are hereby directed to relinquish the possession of said property subject matter of this case and deliver the peaceful possession of the same to the herein defendant or his authorized representatives, to remove the improvements made thereon within fifteen (15) days from the receipt of this decision, otherwise, this Court would remove and/or destroy the same with cost against the plaintiff, further the plaintiff is hereby ordered to pay the amount of Ten Thousand Pesos (P10,000.00), Philippine Currency representing moral damages and exemplary damages in the amount of Five Thousand Pesos (P5,000.00), Philippine Currency, and the amount of Twenty Thousand Pesos (P20,000.00), Philippine Currency, representing attorney's fees. SO ORDERED.29 The MTC reasoned that prescription or the length of time by which Marcelino has held or possessed the property has barred the respondents from filing a claim. On December 12, 1997, respondents filed a Motion for Reconsideration 30 but the MTC denied it in its Order dated February 5, 1998.31 Dissatisfied, respondents filed an appeal with the RTC Branch 70, Iba, Zambales, docketed as RTC-1489-I. On August 10, 2000, the RTC rendered its Decision setting aside the Decision of the MTC.32 The dispositive portion of the Decision states:

WHEREFORE, the appealed Decision of the Municipal Trial Court is hereby REVERSED and SET ASIDE ordering the defendant Marcelino Cabal and all other persons claiming interest under him to vacate and deliver peaceful possession of the disputed area of 423 sq. m. within Lot 1-E embraced in TCT No. T-43419 to the plaintiffs-appellants; to remove all improvements therein introduced by said defendant or by persons under his direction and authority; to pay the plaintiffsappellants P10,000.00 and P5,000.00 by way of moral and exemplary damages, respectively; to pay plaintiff-appellants attorney's fee in the sum ofP20,000.00 and cost of this suit. SO ORDERED.33 In reversing the MTC, the RTC held that Marcelino's possession was in the concept of a co-owner and therefore prescription does not run in his favor; that his possession, which was tolerated by his co-owners, does not ripen into ownership. On August 30, 2000, Marcelino filed a Motion for Reconsideration34 but the RTC denied it in its Order dated May 3, 2001.35 On May 18, 2001, Marcelino filed a Petition for Review with the CA, docketed as CA-G.R. SP No. 64729.36 Marcelino, however, died during the pendency of the case. On September 27, 2001, the CA rendered its Decision affirming in toto the Decision of the RTC.37 In sustaining the RTC, the CA held that Marcelino may have been in good faith when he started to occupy the disputed portion in 1949 but his occupation in good faith diminished after Lot G was surveyed when he was apprised of the fact that the portion he was occupying was not the same as the portion titled in his name; that from the tenor of the Petition for Review Marcelino would like to hold on to both the lot he occupies and Lot G-1, which cannot be allowed since it will double his inheritance to the detriment of his brother Lorenzo. On November 13, 2001, Marcelino's counsel filed a Motion for Reconsideration38 but the CA denied it in its Resolution dated May 22, 2002.39 On June 6, 2002, the heirs of Marcelino (petitioners), represented by his widow, Victoria Cabal, filed the present petition anchored on the following grounds:

I. CONTRARY TO THE COURT OF APPEALS' FINDINGS AND CONCLUSION, PETITIONER NEVER INTENDED AND NEITHER DOES HE INTEND TO HOLD ON TO BOTH THE 423 SQUARE METER WITHIN LOT 1-E WHICH HE IS OCCUPYING AND LOT 1-G (sic). PETITIONER IS ONLY INTERESTED IN THE DISPUTED PROPERTY, THAT IS, A PORTION OF LOT 1-E BECAUSE THIS IS WHERE HE INTRODUCED CONSIDERABLE IMPROVEMENTS IN GOOD FAITH. II. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR WHEN IT RULED THAT THE GOOD FAITH OF PETITIONER ON THE DISPUTED PROPERTY BEGAN TO DIMINISH AFTER LOT-G WAS SURVEYED.40 Anent the first ground, petitioners contend that since 1949 Marcelino has claimed no other portion as his inheritance from Marcelo, except the disputed lot; that Marcelino believed in good faith that the disputed lot is Lot G-1; that Marcelino never intended to hold on to both lots since he did not introduce any improvement on Lot G-1 and he even agreed to a resurvey, swapping of lots and reconstruction of title after discovery of the mistake in 1989; that Marcelino wanted the disputed lot because he has introduced considerable improvements thereon. On the second ground, petitioners maintain that Marcelino became aware of the flaw in his title only before the execution of the swapping agreement in March 1, 1989, long after he had introduced considerable improvements in the disputed lot; that Marcelino should not be faulted for believing that the disputed lot is his titled property because he is a layman, not versed with the technical description of properties; that Marcelino should be adjudged a builder in good faith of all the improvements built on the disputed property immediately prior to the execution of the swapping agreement and accorded all his rights under the law or, alternatively, the swapping of lots be ordered since no improvements have been introduced on Lot G-1. Respondents, on the other hand, submit that Marcelino cannot be adjudged a builder in good faith since he exhibited blatant and deliberate bad faith in dealing with respondents. The Court rules in favor of the petitioners. As a general rule, in petitions for review, the jurisdiction of this Court in cases brought

before it from the CA is limited to reviewing questions of law which involves no examination of the probative value of the evidence presented by the litigants or any of them.41 The Supreme Court is not a trier of facts; it is not its function to analyze or weigh evidence all over again.42 Accordingly, findings of fact of the appellate court are generally conclusive on the Supreme Court.43 Nevertheless, jurisprudence has recognized several exceptions in which factual issues may be resolved by this Court, such as: (1) when the findings are grounded entirely on speculation, surmises or conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of facts are conflicting; (6) when in making its findings the CA went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; (7) when the findings are contrary to the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondent; (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; (11) when the CA manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion.44 The Court finds that exceptions (1), (2), (4) and (11) apply to the present petition. It is undisputed that Marcelino built his house on the disputed property in 1949 with the consent of his father. Marcelino has been in possession of the disputed lot since then with the knowledge of his co-heirs, such that even before his father died in 1954, when the coownership was created, his inheritance or share in the co-ownership was already particularly designated or physically segregated. Thus, even before Lot G was subdivided in 1976, Marcelino already occupied the disputed portion and even then coownership did not apply over the disputed lot. Elementary is the rule that there is no coownership where the portion owned is concretely determined and identifiable, though not technically described,45 or that said portion is still embraced in one and the same certificate of title does make said portion less

determinable or identifiable, or distinguishable, one from the other, nor that dominion over each portion less exclusive, in their respective owners.46 Thus, since Marcelino built a house and has been occupying the disputed portion since 1949, with the consent of his father and knowledge of the co-heirs,47 it would have been just and equitable to have segregated said portion in his favor and not one adjacent to it. Undoubtedly, the subdivision survey effected in 1976 spawned the dilemma in the present case. It designated Lot G-1 as Marcelino's share in the inheritance notwithstanding his possession since 1949 of a definite portion of Lot G, now the southernmost portion of Lot 1-E. Marcelino raised the defense of acquisitive prescription, in addition to possession in good faith, in his Answer to the Complaint in the MTC. Prescription, in general, is a mode of acquiring or losing ownership and other real rights through the lapse of time in the manner and under conditions laid down by law, namely, that the possession should be in the concept of an owner, public, peaceful, uninterrupted and adverse.48 Acquisitive prescription is either ordinary or extraordinary.49 Ordinary acquisitive prescription requires possession in good faith and with just title50 for ten years.51 In extraordinary prescription ownership and other real rights over immovable property are acquired through uninterrupted adverse possession thereof for thirty years, without need of title or of good faith.52 In the present case, the evidence presented during the trial proceedings in the MTC were sorely insufficient to prove that acquisitive prescription has set in with regards to the disputed lot. The tax declaration53 and receipts54 presented in evidence factually established only that Marcelino had been religiously paying realty taxes on Lot G-1. Tax declarations and receipts can only be the basis of a claim of ownership through prescription when coupled with proof of actual possession.55 Evidently, Marcelino declared and paid realty taxes on property which he did not actually possess as he took possession of a lot eventually identified as the southernmost portion of Lot 1-E of subdivision plan (LRC) Psd307100. Furthermore, the Court notes that Marcelino no longer invoked prescription in his pleadings before the RTC56 and CA;57 neither did herein petitioners raise prescription in their petition58 and memorandum59 before this Court.

They only extensively discussed the defense of possession in good faith. They are thus deemed to have abandoned the defense of prescription. The Court shall now delve on the applicability of the principle of possession in good faith. It has been said that good faith is always presumed, and upon him who alleges bad faith on the part of the possessor rests the burden of proof.60 Good faith is an intangible and abstract quality with no technical meaning or statutory definition, and it encompasses, among other things, an honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage. An individual's personal good faith is a concept of his own mind and, therefore, may not conclusively be determined by his protestations alone. It implies honesty of intention, and freedom from knowledge of circumstances which ought to put the holder upon inquiry.61 The essence of good faith lies in an honest belief in the validity of one's right, ignorance of a superior claim, and absence of intention to overreach another.62 Applied to possession, one is considered in good faith if he is not aware that there exists in his title or mode of acquisition any flaw which invalidates it.63 In the present case, Marcelino's possession of the disputed lot was based on a mistaken belief that Lot G-1 is the same lot on which he has built his house with the consent of his father. There is no evidence, other than bare allegation, that Marcelino was aware that he intruded on respondents' property when he continued to occupy and possess the disputed lot after partition was effected in 1976. Moreover, the fact that in 1977 Marcelino mortgaged Lot G-1 subject of TCT No. 22656 is not an indication of bad faith since there is no concrete evidence that he was aware at that time that the property covered by the title and the one he was occupying were not the same. There is also no evidence that he introduced improvements on Lot G-1. In fact, the agreement on March 1, 1989 to a resurvey and swapping of lots for the purpose of reconstructing the land titles is substantial proof of Marcelino's good faith, sincerity of purpose and lack of intention to hold on to two lots.

Thus, the CA's conclusion that Marcelino intended to hold on to both the disputed lot and Lot G-1 is pure speculation, palpably unsupported by the evidence on record. Marcelino is deemed a builder in good faith 64 at least until the time he was informed by respondents of his encroachment on their property.65 When a person builds in good faith on the land of another, the applicable provision is Article 448, which reads: Article 448. The owner of the land on which anything has been built, sown or planted in good faith, shall have the right to appropriate as his own the works, sowing or planting, after payment of the indemnity provided for in Articles 54666 and 548,67 or to oblige the one who built or planted to pay the price of the land, and the one who sowed, the proper rent. However, the builder or planter cannot be obliged to buy the land if its value is considerably more than that of the building or trees. In such case, he shall pay reasonable rent, if the owner of the land does not choose to appropriate the building or trees after proper indemnity. The parties shall agree upon the terms of the lease and in case of disagreement, the court shall fix the terms thereof. Thus, the owner of the land on which anything has been built, sown or planted in good faith shall have the right to appropriate as his own the building, planting or sowing, after payment to the builder, planter or sower of the necessary and useful expenses, and in the proper case, expenses for pure luxury or mere pleasure. The owner of the land may also oblige the builder, planter or sower to purchase and pay the price of the land. If the owner chooses to sell his land, the builder, planter or sower must purchase the land, otherwise the owner may remove the improvements thereon. The builder, planter or sower, however, is not obliged to purchase the land if its value is considerably more than the building, planting or sowing. In such case, the builder, planter or sower must pay rent to the owner of the land. If the parties cannot come to terms over the conditions of the lease, the court must fix the terms thereof. The right to choose between appropriating the improvement or selling the land on which the improvement stands to the builder, planter or sower, is given to the owner of the land.68 In accordance with Depra v. Dumlao, 69 this case must be remanded to the trial court to

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determine matters necessary for the proper application of Article 448 in relation to Articles 546 and 548. Such matters include the option that respondents would take and the amount of indemnity that they would pay, should they decide to appropriate the improvements on the lots. The Court notes that petitioners' alternative prayer that swapping of lots be ordered because no improvements have been introduced on Lot G-1. This cannot be granted. Respondents and Marcelino, petitioners' predecessor-in-interest, did not pray for swapping of lots in all their pleadings below. Both parties also did not allege the existence of a swapping agreement in their initial pleadings, much less pursue the enforcement of the swapping agreement. They are deemed to have renounced or abandoned any enforceable right they had under the swapping agreement and the parties cannot be compelled to a swapping of lots. WHEREFORE, the instant petition is GRANTED. The assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 64729 are REVERSED and SET ASIDE. The case is REMANDED to the court of origin for further proceedings to determine the facts essential to the proper application of Article 448 in relation to Articles 546 and 548 of the Civil Code. No pronouncement as to costs. ARNELITO ADLAWAN, No. 161916 Petitioner, Present: Panganiban, C.J. (Chairman), - versus Ynares-Santiago, Austria-Martinez, Callejo, Sr., and Chico-Nazario, JJ. EMETERIO M. ADLAWAN and NARCISA M. ADLAWAN, Promulgated: Respondents. January 20, 2006 Assailed in this petition for review is the September 23, 2003 Decision[1] of the Court of Appeals in CA-G.R. SP No. 74921 which set G.R.

aside the September 13, 2002 Decision[2] of the Regional Trial Court (RTC) of Cebu City, Branch 7, in Civil Case No. CEB-27806, and reinstated the February 12, 2002 Judgment [3] of the Municipal Trial Court (MTC) of Minglanilla, Metro Cebu, in Civil Case No. 392, dismissing petitioner Arnelito Adlawans unlawful detainer suit against respondents Emeterio and Narcisa Adlawan. Likewise questioned is the January 8, 2004 Resolution[4] of the Court of Appeals which denied petitioners motion for reconsideration. The instant ejectment suit stemmed from the parties dispute over Lot 7226 and the house built thereon, covered by Transfer Certificate of Title No. 8842, [5]registered in the name of the late Dominador Adlawan and located at Barrio Lipata, Municipality of Minglanilla, Cebu. In his complaint, petitioner claimed that he is an acknowledged illegitimate child[6] of Dominador who died on May 28, 1987 without any other issue. Claiming to be the sole heir of Dominador, he executed an affidavit adjudicating to himself Lot 7226 and the house built thereon. [7] Out of respect and generosity to respondents who are the siblings of his father, he granted their plea to occupy the subject property provided they would vacate the same should his need for the property arise. Sometime in January 1999, he verbally requested respondents to vacate the house and lot, but they refused and filed instead an action for quieting of title[8] with the RTC. Finally, upon respondents refusal to heed the last demand letter to vacate dated August 2, 2000, petitioner filed the instant case on August 9, 2000.[9] On the other hand, respondents Narcisa and Emeterio, 70 and 59 years of age, respectively,[10] denied that they begged petitioner to allow them to stay on the questioned property and stressed that they have been occupying Lot 7226 and the house standing thereon since birth. They alleged that Lot 7226 was originally registered in the name of their deceased father, Ramon Adlawan[11] and the ancestral house standing thereon was owned by Ramon and their mother, Oligia Maacap Adlawan. The spouses had nine[12] children including the late Dominador and herein surviving respondents Emeterio and Narcisa. During the lifetime of their parents and deceased siblings, all of them lived on the said property. Dominador and his wife, Graciana Ramas Adlawan, who died without issue, also occupied the same. [13] Petitioner, on the other hand, is a stranger who never had possession of Lot 7226.

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Sometime in 1961, spouses Ramon and Oligia needed money to finance the renovation of their house. Since they were not qualified to obtain a loan, they transferred ownership of Lot 7226 in the name of their son Dominador who was the only one in the family who had a college education. By virtue of a January 31, 1962 simulated deed of sale, [14] a title was issued to Dominador which enabled him to secure a loan with Lot 7226 as collateral. Notwithstanding the execution of the simulated deed, Dominador, then single, never disputed his parents ownership of the lot. He and his wife, Graciana, did not disturb respondents possession of the property until they died on May 28, 1987 and May 6, 1997, respectively. Respondents also contended that Dominadors signature at the back of petitioners birth certificate was forged, hence, the latter is not an heir of Dominador and has no right to claim ownership of Lot 7226. [15] They argued that even if petitioner is indeed Dominadors acknowledged illegitimate son, his right to succeed is doubtful because Dominador was survived by his wife, Graciana.
[16]

Court of Minglanilla, Cebu, in Civil Case No. 392, is reversed. Defendants-appellees are directed to restore to plaintiffappellant possession of Lot 7226 and the house thereon, and to pay plaintiff-appellant, beginning in August 2000, compensation for their use and occupation of the property in the amount of P500.00 a month. So ordered.[18] Meanwhile, the RTC granted petitioners motion for execution pending appeal[19] which was opposed by the alleged nephew and nieces of Graciana in their motion for leave to intervene and to file an answer in intervention.[20] They contended that as heirs of Graciana, they have a share in Lot 7226 and that intervention is necessary to protect their right over the property. In addition, they declared that as co-owners of the property, they are allowing respondents to stay in Lot 7226 until a formal partition of the property is made. The RTC denied the motion for leave to intervene.[21] It, however, recalled the order granting the execution pending appeal having lost jurisdiction over the case in view of the petition filed by respondents with the Court of Appeals.[22] On September 23, 2003, the Court of Appeals set aside the decision of the RTC and reinstated the judgment of the MTC. It ratiocinated that petitioner and the heirs of Graciana are co-owners of Lot 7226. As such, petitioner cannot eject respondents from the property via an unlawful detainer suit filed in his own name and as the sole owner of the property. Thus WHEEFORE, premises considered, the appealed Decision dated September 13, 2002 of the Regional Trial Court of Cebu City, Branch 7, in Civil Case No. CEB-27806 is REVERSED and SET ASIDE, and the Judgment dated February 12, 2002 of the Municipal Trial Court of Minglanilla, Metro Cebu, in Civil Case No. 392 is REINSTATED. Costs against the respondent. SO ORDERED.[23]

On February 12, 2002, the MTC dismissed the complaint holding that the establishment of petitioners filiation and the settlement of the estate of Dominador are conditions precedent to the accrual of petitioners action for ejectment. It added that since Dominador was survived by his wife, Graciana, who died 10 years thereafter, her legal heirs are also entitled to their share in Lot 7226. The dispositive portion thereof, reads: In View of the foregoing, for failure to prove by preponderance of evidence, the plaintiffs cause of action, the above-entitled case is hereby Ordered DISMISSED. SO ORDERED.[17] On appeal by petitioner, the RTC reversed the decision of the MTC holding that the title of Dominador over Lot 7226 cannot be collaterally attacked. It thus ordered respondents to turn over possession of the controverted lot to petitioner and to pay compensation for the use and occupation of the premises. The decretal portion thereof, provides: Wherefore, the Judgment, dated February 12, 2002, of the Municipal Trial

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Petitioners motion for reconsideration was denied. Hence, the instant petition. The decisive issue to be resolved is whether or not petitioner can validly maintain the instant case for ejectment. Petitioner averred that he is an acknowledged illegitimate son and the sole heir of Dominador. He in fact executed an affidavit adjudicating to himself the controverted property. In ruling for the petitioner, the RTC held that the questioned January 31, 1962 deed of sale validly transferred title to Dominador and that petitioner is his acknowledged illegitimate son who inherited ownership of the questioned lot. The Court notes, however, that the RTC lost sight of the fact that the theory of succession invoked by petitioner would end up proving that he is not the sole owner of Lot 7226. This is so because Dominador was survived not only by petitioner but also by his legal wife, Graciana, who died 10 years after the demise of Dominador on May 28, 1987. [24] By intestate succession, Graciana and petitioner became co-owners of Lot 7226.[25] The death of Graciana on May 6, 1997, did not make petitioner the absolute owner of Lot 7226 because the share of Graciana passed to her relatives by consanguinity and not to petitioner with whom she had no blood relations. The Court of Appeals thus correctly held that petitioner has no authority to institute the instant action as the sole owner of Lot 7226. Petitioner contends that even granting that he has co-owners over Lot 7226, he can on his own file the instant case pursuant to Article 487 of the Civil Code which provides: ART. 487. Any one of the co-owners may bring an action in ejectment. This article covers all kinds of actions for the recovery of possession. Article 487 includes forcible entry and unlawful detainer (accion interdictal), recovery of possession (accion publiciana), and recovery of ownership (accion de reivindicacion).[26] A coowner may bring such an action without the necessity of joining all the other co-owners as co-plaintiffs because the suit is presumed to have been filed to benefit his co-owners. It should be stressed, however, that where the suit is for the benefit of the plaintiff alone who claims to be the sole owner and entitled to the possession of the litigated property, the action should be dismissed.[27]

The renowned civilist, Professor Arturo M. Tolentino, explained A co-owner may bring such an action, without the necessity of joining all the other co-owners as co-plaintiffs, because the suit is deemed to be instituted for the benefit of all. If the action is for the benefit of the plaintiff alone, such that he claims possession for himself and not for the co-ownership, the action will not prosper. (Emphasis added)[28] In Baloloy v. Hular,[29] respondent filed a complaint for quieting of title claiming exclusive ownership of the property, but the evidence showed that respondent has coowners over the property. In dismissing the complaint for want of respondents authority to file the case, the Court held that Under Article 487 of the New Civil Code, any of the co-owners may bring an action in ejectment. This article covers all kinds of actions for the recovery of possession, including anaccion publiciana and a reinvidicatory action. A co-owner may bring such an action without the necessity of joining all the other co-owners as co-plaintiffs because the suit is deemed to be instituted for the benefit of all. Any judgment of the court in favor of the co-owner will benefit the others but if such judgment is adverse, the same cannot prejudice the rights of the unimpleaded co-owners. If the action is for the benefit of the plaintiff alone who claims to be the sole owner and entitled to the possession thereof, the action will not prosper unless he impleads the other co-owners who are indispensable parties. In this case, the respondent alone filed the complaint, claiming sole ownership over the subject property and praying that he be declared the sole owner

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thereof. There is no proof that the other co-owners had waived their rights over the subject property or conveyed the same to the respondent or such co-owners were aware of the case in the trial court. The trial court rendered judgment declaring the respondent as the sole owner of the property and entitled to its possession, to the prejudice of the latters siblings. Patently then, the decision of the trial court is erroneous. Under Section 7, Rule 3 of the Rules of Court, the respondent was mandated to implead his siblings, being coowners of the property, as parties. The respondent failed to comply with the rule. It must, likewise, be stressed that the Republic of the Philippines is also an indispensable party as defendant because the respondent sought the nullification of OCT No. P-16540 which was issued based on Free Patent No. 384019. Unless the State is impleaded as party-defendant, any decision of the Court would not be binding on it. It has been held that the absence of an indispensable party in a case renders ineffective all the proceedings subsequent to the filing of the complaint including the judgment. The absence of the respondents siblings, as parties, rendered all proceedings subsequent to the filing thereof, including the judgment of the court, ineffective for want of authority to act, not only as to the absent parties but even as to those present.[30] In the instant case, it is not disputed that petitioner brought the suit for unlawful detainer in his name alone and for his own benefit to the exclusion of the heirs of Graciana as he even executed an affidavit of selfadjudication over the disputed property. It is clear therefore that petitioner cannot validly maintain the instant action considering that he does not recognize the co-ownership that

necessarily flows from his theory of succession to the property of his father, Dominador. In the same vein, there is no merit in petitioners claim that he has the legal personality to file the present unlawful detainer suit because the ejectment of respondents would benefit not only him but also his alleged co-owners. However, petitioner forgets that he filed the instant case to acquire possession of the property and to recover damages. If granted, he alone will gain possession of the lot and benefit from the proceeds of the award of damages to the exclusion of the heirs of Graciana. Hence, petitioner cannot successfully capitalize on the alleged benefit to his co-owners. Incidentally, it should be pointed out that in default of the said heirs of Graciana, whom petitioner labeled as fictitious heirs, the State will inherit her share [31] and will thus be petitioners co-owner entitled to possession and enjoyment of the property. The present controversy should be differentiated from the cases where the Court upheld the right of a co-owner to file a suit pursuant to Article 487 of the Civil Code. In Resuena v. Court of Appeals, [32] and Sering v. Plazo,[33] the co-owners who filed the ejectment case did not represent themselves as the exclusive owner of the property. In Celino v. Heirs of Alejo and Teresa Santiago ,[34] the complaint for quieting of title was brought in behalf of the co-owners precisely to recover lots owned in common.[35] Similarly in Vencilao v. Camarenta,[36] the amended complaint specified that the plaintiff is one of the heirs who co-owns the controverted properties. In the foregoing cases, the plaintiff never disputed the existence of a co-ownership nor claimed to be the sole or exclusive owner of the litigated lot. A favorable decision therein would of course inure to the benefit not only of the plaintiff but to his co-owners as well. The instant case, however, presents an entirely different backdrop as petitioner vigorously asserted absolute and sole ownership of the questioned lot. In his complaint, petitioner made the following allegations, to wit: 3. The plaintiff was the only son (illegitimate) and sole heir of the late DOMINADOR ADLAWAN who died intestate on 28 May 1987 without any other descendant nor ascendant x x x. xxxx

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5. Being the only child/descendant and, therefore, sole heir of the deceased Dominador Adlawan, the plaintiff became the absolute owner, and automatically took POSSESSION, of the aforementioned house and lot x x x. (Emphasis added)[37] Clearly, the said cases find no application here because petitioners action operates as a complete repudiation of the existence of co-ownership and not in representation or recognition thereof. Dismissal of the complaint is therefore proper. As noted by Former Supreme Court Associate Justice Edgrado L. Paras [i]t is understood, of course, that the action [under Article 487 of the Civil Code] is being instituted for all. Hence, if the co-owner expressly states that he is bringing the case only for himself, the action should not be allowed to prosper.[38] Indeed, respondents not less than four decade actual physical possession of the questioned ancestral house and lot deserves to be respected especially so that petitioner failed to show that he has the requisite personality and authority as co-owner to file the instant case. Justice dictates that respondents who are now in the twilight years of their life be granted possession of their ancestral property where their parents and siblings lived during their lifetime, and where they, will probably spend the remaining days of their life. WHEREFORE, the petition is DENIED. The September 23, 2003 Decision of the Court of Appeals in CA-G.R. SP No. 74921 which reinstated the February 12, 2002 Judgment of the Municipal Trial Court of Minglanilla, Metro Cebu, dismissing petitioners complaint in Civil Case No. 392, and its January 8, 2004 Resolution, are AFFIRMED. SO ORDERED.

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