G.R. No.

5609           September 1, 1911

GREGORIA DE CASTRO Y PEREZ ET AL., plaintiffs-appellees, 

vs.
INOCENTE ECHARRI Y GONZALEZ, defendant-appellant.

On December 10, 1868, Antonio Perez acquired any purchase a parcel of land for building
purposes, situated in the district of Ermita of this city, at No. 149 Calle San Luis. He died on May
15, 1881, leaving a widow, Angela Echarri, and a daughter named Luisa Perez Echarri, who on
March 28, 1904, sold the said lot to Inocente Echarri, and the latter erected thereon a house
valued at P8,000.

On July 22, 1908, or twenty-seven years after the decease of Antonio Perez, the original owner
of the lot, certain parties named Gregoria Castro and Mercedes Calderon sued Inocente Echarri
for five-twelfths of said lot, calling themselves daughters of one Maria and nieces of one Justa
whom they say were daughters of Antonio Perez in his first marriage with a woman named
Eugenia Garcia. The Court of First Instance of the city of Manila awarded them 8,333.33/17,500
of the lot.

Defendant appealed, and from this appeal, with the briefs of the litigants, it appears:

1. That it is a fact proven by the purchase deed that the original owner of the lot was Antonio
Perez, without any mention whatsoever in said deed that he was married.

2. That in no way, either by documentary or oral evidence, has it been directly proven by the
plaintiffs that at the time he was married to any woman with whom he must under the law share
the property acquired during marriage.

3. That it is an established fact, admitted by both parties, that Antonio Perez was married in
1872 to Maria Meneses, by whom he had a son, but both said wife and son died before Antonio
Perez did; so that they in no way figure in this suit.

4. That it is also an established fact, admitted by both parties, that Antonio Perez at his death
left a widow named Angela Echarri and a daughter by her, Luisa Perez Echarri.

5. That this Luisa Perez Echarri is the only person who appears undoubtedly to be the
successor in interest and the heir of Antonio Perez by operation of law, both in the estate and
the intestate succession.

6. That it appears from a piece of documentary evidence, consisting of an authentic public

document, that before dying Antonio Perez executed a will; but this will could not be produced,
and therefore his final statements and dispositions can not be known.

7. That for the purpose of making a partition of inheritance in the intestate succession of Antonio
Perez in which the plaintiffs my figure, it is in every way necessary to prove that the original
owner married Eugenia Garcia before he married his other two successive wives, whose
marriages are satisfactorily proven; that he was already married to Eugenia Garcia when he
purchased the lot in question; that in this first marriage he had two daughters, named Maria and
Justa; and that from Maria sprang the laws then in force, Gregoria de Castro and Mercedes
Calderon, who claim to be the lawful granddaughters of Antonio Perez.
8. That there is not the least evidence in the record of the fact that Gregoria de Castro and
Mercedes Calderon are the lawful daughters of this Maria; that there is only fragmentary
evidence of the fact that this Maria was the lawful daughter of Antonio Perez.

These facts are denied in the defendant's reply, and in the brief accompanying his assignment
of errors, in arguing upon the second assignment of error, he elucidates with a prolixity of data
the legal impossibility of such facts, But such contention need not be considered here,
especially as there are other arguments more conclusive, which the court must necessarily
consider.

These arguments are as follows:

The present action does not concern a partition of inheritance but is an action for recovery
against a third party who possesses the lot in question by single deed of purchase. This third
party is not a successor in interest of Antonio Perez, and thus called upon either to defend or
impugn the rights of succession of the alleged children of Antonio Perez, but he is the sole
successor of Luisa Perez in ownership and possession of said lot, for the acquisition of which
he had before him facts and documents that have not been denied, not even indirectly, nor in
any way impugned, He is now disturbed in his possession by this suit, based upon facts which
he could not have conveniently taken into account was he under obligation, in the ordinary
course of business to make any inquiries.

The facts contained in the title deeds to the lot in question which that third party had before him
making his purchase, are established facts, adduced by the plaintiffs themselves. He saw, first,
in the original deed, that Inocencio and Perfecto Gallego, with a sister of theirs, were the true
and lawful owners of the lot, which was perfectly identified in the deed by location, dimensions
and boundaries; second he saw how Inocencio and Perfecto Gallego, having become owners
also of their part belonging to their sister, had on December 10, 1868, sold the lot, described in
the same terms as in the deed, to Antonio Perez, the sale having taken place in this city of
Manila before a notary public, who, for that purpose, witnessed a document, the most formal
that could be drawn up to the contract; and, finally, he saw another public document also
witnessed by a notary, bearing date of January 11, 1888, seven years after the death of Antonio
Perez, wherein it appears that Angela Echarri, widow of Antonio Perez, sold with right of
repurchase to a merchant of Manila, Antonio de Marcaida, said lot, identified by boundaries,
dimensions and location, according to the foregoing documents of which mention has been
made, and stating "that said lot had been acquired by her deceased husband, Don Antonio
Perez, according to the bill of sale executed on December 10, 1868, in the presence of the
notary public, Don Baltazar de Ocampo, the original whereof, with another original document of
ownership, was exhibited at the time and read by me [says the notary] and after they had been
signed by me were attached hereto, to which I certify." And although the period for the
repurchase was one year, he saw that on December 17, 1888, the lot had been resold to
Angela Echarri by Antonio de Marcaida.

This transaction Angela Echarri's shows plainly: That she held the muniments of title to the lot;
that she exclusively possessed the lot for seven years after the death of her husband, Antonio
Perez; that during such time, no one had questioned the ownership or possession of the lot;
and, therefore, that she could freely dispose of it by sale, and the purchaser, an intelligent
merchant of this city, had no hesitation in buying it.
She held the lot and disposed of it, it may be supposed, in the name and on behalf of her
daughter, Luisa Perez, who was then a minor, and who was apparently the one who lawfully
owned it. It was hers, as the legal heir of the deceased Antonio Perez, and his only successor in
interest after his death; and when she became of age, she, on March 28, 1904, that is, after
twenty-three years of undisturbed and peaceful possession, sold it to the defendant in this case.

The Maria who is said to be the mother of the plaintiffs, died in this city, in Calle Mercado,
Intramuros, according to the certificate submitted; and there Mercedes Calderon says she lives.
It does not appear that during her lifetime and up to 1908, when she appears to have died,
Maria made any pretense of being a co-owner of that lot; nor did she or Justa, who is also said
to have been a daughter of Antonio Perez, institute any action for the partition of what was said
to be a legacy of their alleged father. Only after the death of Maria and of Justa was an attempt
made to make a partition of Antonio Perez's legacy.

The following facts are clearly proven in this case:

1. That the defendant acquired the lot from one who, for twenty-seven years, was in fact before
the world and in law, according to title deeds, the sole legal owner through inheritance, to wit
Luisa Perez.

2. That in no way appears in the case that she possessed the lot jointly and pro indiviso with
any other person having an equal or a better right than hers to the legacy of her father, Antonio
Perez.

3. That after May 16, 1887, Luisa Perez's ownership was by individual title, as the only heir of
Antonio Perez and the sole proprietor of the lot.

4. That no time has this sole proprietor been either judicially or extra judicially cited or
questioned, so that she should understand her ownership to be in common or shared with other
persons.

The purchaser having bought the lot under these circumstances, he acquired it by clear title, in
a regular manner, and for a consideration.

So then, even supposing what is not proven — that is, that the plaintiffs really are legitimate
descendants of the women whom they claims as their mothers, and that these letter were really
legitimate daughters of Antonio Perez, with better or equal right over Luisa Perez — they
cannot, after twenty-seven years, disturb a third party, the defendant, a purchaser in good faith,
who at present holds the lot by a clear title, because he is thereby protected; for, even should
the title be in some way defective, he would still be protected by the prescription for a period of
ten, and even of twenty years, by which possession of real property may be obtained. (Civil
Code, arts. 1940 and 1957.) In the present case the defendant would have acquired the lot by
prescription for a period of ten years, especially when it is proven by the testimony of one of the
plaintiffs and by documentary evidence that neither they nor their mothers have been abroad or
out of the country, in order to make the required period twenty years. (Art. 1958.)

The claim of prescription having been presented in such form, it must not be understood to be
restricted to the prescription of right, but must also include prescription of possession.
The "right to commence action" having been prescribed, it applies to negative as well as
positive prescription, since the right of action lapses as to the person who acquires the
possessions or ownership as well as to the one who is liable to loose the ownership or
possession.

It is true that, under article 1965:

"Among coheirs, coowners, or proprietors of adjacent estates, the right of action to demand the
division of the inheritance, of the thing held in common. Or the survey of the adjacent properties
does not prescribe; . . . nevertheless, the imprescriptibility of the action to demand the division
of a succession known in Roman Law asfamiliae erciscundae, can not be invoked when one of
the co-heirs has possessed the inheritance as owner and for a period sufficient to acquire it by
prescription, because such action necessarily arises from the possession in common or pro
indiviso of the inheritance, as laid down by the Supreme Court in a judgment of April 15, 1904 . .
. Moreover, it must be remembered that, as was stated in judgments of the same court of
January 15, 1902, and June 22, 1904, the action among coheirs or coowners to demand
partition of the inheritance or division of a fund, to which said article applies, is distinct from the
action for recovery involving ownership pro solido of the same fund, and if the question is one
relating to the recovery of inherited property or a part of a common estate, and not of partition,
the prohibition in said article is not applicable." (12 Manresa, Com. on Civil Code, 858.)

For the foregoing reasons, the judgment appealed from is reversed, without special finding as to
costs. So ordered.

Torres, Mapa, Johnson and Moreland, JJ., concur.

G.R. No. 75886 August 30, 1988

CONCEPCION ROQUE, petitioner, 
vs.
HON. INTERMEDIATE APPELLATE COURT, ERNESTO ROQUE, FILOMENA OSMUNDO,
CECILIA ROQUE, MARCELA ROQUE, JOSE ROQUE and RUBEN ROQUE, respondents.

The subject of the present Petition for Review is the 31 July 1986 Decision of the former
Intermediate Appellate Court in AC-G.R. CV No. 02248 (entitled, "Concepcion Roque, plaintiff-
appellee, vs. Ernesto Roque, Filomena Osmunda Cecilia Roque, Marcela Roque, Jose Roque
and Ruben Roque, defendants-appellants") which reversed and set aside on appeal the
decision of the Regional Trial Court of Malolos, Branch 9.

The controversy here involves a 312 square meter parcel of land situated in San Juan, Malolos,
Bulacan and designated as Lot No. 1549 of the Cadastral Survey of Malolos. The property was
registered originally in the name of Januario Avendaño, a bachelor who died intestate and
without issue on 22 October 1945.

On 21 September 1959, the intestate heirs of Januario Avendafio executed a document entitled
"Paghahati at Pagtagabuyan ng Mana sa Labas ng Hukuman." 1 Through this instrument,
extrajudicial partition of Lot No. 1549 was effected among the intestate heirs as follows:

a. One-fourth (1/4) undivided portion to Illuminada Avendaño.

b. One-fourth (1/4) undivided portion to Gregorio Avendafio and Miguel

Avendaño.

c. One-fourth (1/4) undivided portion to Bernardino, Bienvenido, Numeriano and

Rufina, all surnamed Avendaño.

d. One-fourth (1/4) undivided portion to respondent Emesto Roque and Victor

Roque. 2

On 28 September 1959, co-owners Illuminada, Gregorio, Miguel, Bernardino, Bienvenido,

Numeriano and Rufina, all surnamed Avendaño, in consideration of the aggregate amount of
P500.00, transferred their collective and undivided threefourths (3/4) share in Lot No. 1549 to
respondent Ernesto Roque and Victor Roque, thereby vesting in the latter full and complete
ownership of the property. The transactions were embodied in two (2) separate deeds of sale
both entitled "Kasulatan ng Bilihang Patuluyan" 3 and both duly notarized. Subsequently, in an
unnotarized "Bilihan Lubos at Patuluyan" 4 dated 27 November 1961, Emesto and Victor Roque
purportedly sold a three-fourths (3/4) undivided portion of Lot No. 1549 to their half-sister,
petitioner Concepcion Roque, for the same amount. The property, however, remained
registered in the name of the decedent, Januario Avendaño.

Upon the instance of petitioner Concepcion Roque and allegedly of respondent Ernesto Roque,
Lot No. 1549 was surveyed on 20 September 1975. Consequent thereto, a Subdivision
Plan 5 was drawn up by the Geodetic Engineer Identifying and delineating a one-fourth (1/4)
portion (78 square meters) of the property as belonging to respondent Ernesto Roque and
Victor Roque (who had died on 14 April 1962), upon the one hand, and a three-fourths (3/4)
portion (234 square meters) of the same property as belonging to petitioner Concepion Roque,
upon the other hand. Petitioner claimed that preparation of the Subdivision Plan, which was
approved on 3 November 1975 by the Land Registration Commission was a preliminary step
leading eventually to partition of Lot No. 1549, partition allegedly having been previously agreed
upon inter se by the co-owners. Respondents Ernesto Roque and the legal heirs of Victor
Roque, however, refused to acknowledge petitioner's claim of ownership of any portion of Lot
No. 1549 and rejected the plan to divide the land.

Attempts at amicable settlement having fallen through, petitioner Concepcion Roque, on 6

December 1977, filed a Complaint for "Partition with Specific Performance" 6 (docketed as Civil
Case No. 5236-M) with Branch 2 of the then Court of First Instance of Malolos against
respondents Emesto Roque and the heirs of Victor Roque. In her complaint, petitioner (plaintiff
below) claimed legal ownership of an undivided threefourths (3/4) portion of Lot No. 1549, by
virtue of the 27 November 1961 "Bilihan Lubos at Patuluyan" executed in her favor by Emesto
Roque and Victor Roque. In support of this claim, petitioner also presented an undated and
unnotarized "Kasulatang Pagkilala sa Bilihan Patuluyan ng Bahagui at Pagmamana sa Labas
ng Hukuman at Paghahati-hati at Abuyan ng Bahagui" 7said to have been signed by the
respondents in acknowledgment of the existence and validity of the Bilihan in favor of petitioner.
Finally, petitioner alleged that, as a coowner of Lot No. 1549, she had a right to seek partition of
the property, that she could not be compelled to remain in the coownership of the same.

In an Answer with Compulsory Counterclaim 8 filed on 28 December 1977, respondents

(defendants below) impugned the genuineness and due execution of the "Bilihan Lubos at
Patuluyan" dated 27 November 1961 on the ground "that the signatures appearing thereon are
not the authentic signatures of the supposed signatories ...." It was also alleged that petitioner
Concepcion Roque, far from being a co-owner of Lot No. 1549, "occupied a portion of the lot in
question by mere tolerance of the [defendants]." Respondents also refused to honor the
unnotarized Kasulatan and, additionally, denied having had any participation in the preparation
of the Subchvision Plan.

On 27 June 1983, the trial court (now Branch 9, Regional Trial Court of Malolos) rendered a
Decision, 9 the dispositive portion of which read:

WHEREFORE, judgment is hereby rendered, in favor of the plaintiff and against the
defendants;

1. Ordering the heirs of the late Victor Roque namely Filomena Osmunda his spouse,
his children, Cecilia Roque, Marcela Roque, Jose Roque and Ruben Roque and their
uncle and co-defendant Emesto Roque, to execute a deed of confirmation of the sale
made by Emesto and Victor Roque in favor of plaintiff Concepcion Roque, entitled
"Bilihan Lubos at Patuluyan," executed on November 27, 1961, Exh. E, over the 3/4
portion of the subject property;

2. Ordering the partition of the parcel of land described in par. 3 of tie complaint
covered by Original Certificate of Title No. 1442 Bulacan issued in the name of
Januario Avendafio, in the proportion of 3/4 to pertain to Concepcion Roque, and 1/4
to pertain to Emesto Roque and his co- defendants, his sister-in-law, nephews and
nieces, in accordance with the approved subdivision plan (LRC Psd-230726).

3. Ordering defendants,jointly and severally, to pay to plaintiff the sum of P2,000.00

as and for attomey's fees and the costs of suit. SO ORDERED.
The respondents appealed from this decision alleging the following errors:

The lower court erred when it decided and ordered defendantsappellants to

execute a confirmation of the "Bilihan Lubos at Patuluyan," Exh. "E."

II

The lower court erred when it decided and ordered the defendantsappellant,s to
deliver unto the plaintiff [a] 3/4 share of the land in question.

III

The lower court erred in deciding this case in favor of the plaintiff-appellee, based
on an unnotarized and forged signature of defendantappellant Ernesto Roque.

IV

The lower court erred in giving credence to the testimony of the plaintiff-appellee
Concepcion Roque despite [its] gross inconsistencies. 10

Acting on the appeal (docketed as A.C.-G.R. CV No. 02248), the Intermediate Appellate Court,
in a Decision 11dated 31 July 1986, reversed the judgment of the trial court and dismissed both
the petitioner's complaint and the respondents' appeal. A Motion for Reconsideration of
petitioner Concepcion Roque was denied.

The present Petition for Review was filed with this Court on 18 September 1986. In a resolution
dated 27 July 1987, we gave due course to the Petition and required the parties to submit their
respective Memoranda.

1. On the matter of dismissal of petitioner's complaint, the Intermediate Appellate Court stated in
its decision:

While the action filed by the plaintiff is for partition, the defendantz, after denying
plaintiff's assertion of co-ownership, asserted that they are the exclusive and sole
owners of the 314 portion of the parcel of land claimed by the plaintiff.

Upon the issue thusjoined by the pleadings, it is obvious that the case has
become one ofownership of the disputed portion of the subject lot.

It is well settled that an action for partition will not prosper as such from the
moment an alleged co-owner asserts an adverse title. The action that may be
brought by an aggrieved co-owner is accion reivindicatoria or action for recovery
of title and possession (Jardin vs. Hallasgo, 11 7 SCRA 532, 536, 537; Paner vs.
Gaspar, 3 CA Rep. 155, 158). (Emphasis supplied)

Viewed in the light of the facts of the present case, the Intermediate Appellate Court's decision
appears to imply that from the moment respondents (defendants below) alleged absolute and
exclusive ownership of the whole of Lot No. 1549 in their Answer, the trial court should have
immediately ordered the dismissal of the action for partition and petitioner (plaintiff below), if she
so desired, should have refiled the case but this time as an accion reinvindicatoria. Taking this
analysis a step further should the reivindicatory action prosper — i.e., a co-ownership relation is
found to have existed between the parties — a second action for partition would still have to be
instituted in order to effect division of the property among the co-owners.

We do not agree with the above view. An action for partition-which is typically brought by a
person claiming to be co-owner of a specified property against a defendant or defendants whom
the plaintiff recognizes to be co-owners — may be seen to present simultaneously two principal
issues. First, there is the issue of whether the plaintiff is indeed a co-owner of the property
sought to be partitioned. Second, assuming that the plaintiff successfully hurdles the first issue,
there is the secondary issue of how the property is to be divided between plaintiff and
defendant(s) — i.e., what portion should go to which co-owner.

Should the trial court find that the defendants do not dispute the status of the plaintiff as co-
owner, the court can forthwith proceed to the actual partitioning of the property involved. In case
the defendants assert in their Answer exclusive title in themselves adversely to the plaintiff, the
court should not dismiss the plaintiffs action for partition but, on the contrary and in the exercise
of its general jurisdiction, resolve the question of whether the plaintiff is co-owner or not. Should
the trial court find that the plaintiff was unable to sustain his claimed status as co-owner, or that
the defendants are or have become the sole and exclusive owners of the property involved, the
court will necessarily have to dismiss the action for partition. This result would be reached, not
because the wrong action was commenced by the plaintiff, but rather because the plaintiff
having been unable to show co-ownership rights in himself, no basis exists for requiring the
defendants to submit to partition the property at stake. If, upon the other hand, the court after
trial should find the eidstence of co-ownership among the parties litigant, the court may and
should order the partition of the property in the same action. Judgment for one or the other party
being on the merits, the losing party (respondents in this case) may then appeal the same. In
either case, however, it is quite unnecessary to require the plaintiff to file another action,
separate and independent from that for partition originally instituted. Functionally, an action for
partition may be seen to be at once an action for declaration of coownership and for segregation
and conveyance of a determinate portion of the property involved. This is the import of our
jurisprudence on the matter. 12 and is sustained by the public policy which abhors multiplicity of
actions.

The question of prescription also needs to be addressed in this connection. It is sometimes said
that "the action for partition of the thing owned in common (actio communi dividendo or actio
familiae erciscundae) does not prescribe." 13 This statement bears some refinement. In the
words of Article 494 of the Civil Code, "each co-owner may demand at any time the partition of
the thing owned in common, insofar as his share is concemed." No matter how long the co-
ownership has lasted, a co-owner can always opt out of the co-ownership, and provided the
defendant co-owners or co-heirs have theretofore expressly or impliedly recognized the co-
ownership, they cannot set up as a defense the prescription of the action for partition. But if the
defendants show that they had previously asserted title in themselves adversely to the plaintiff
and for the requisite period of time, the plaintiffs right to require recognition of his status as a co-
owner will have been lost by prescription and the court cannot issue an order requiring partition.
This is precisely what happened in Jardin v. Hallasgo, 117 SCRA 532 (1982), which the
respondent appellate court cited to support its position quoted above.
The case of Jardin involved, among others, two (2) parcels of land which were inherited in 1920
by the brothers Catalino jardin and Galo Jardin together with their half-brother, Sixto Hallasgo.
The three (3) held these lands in co-ownership until Sixto later (the date was not specified)
repudiated the coownership and occupied and possessed both parcels of land, claiming the
same exclusively as his own. Sometime in 1973, the heirs of Catalino and Galo instituted an
action for partition of the two (2) properties against Sixto's heirs, who had refused to surrender
any portion of the same to the former. The trial court, assuming that prescription had started to
run in that case even before the Civil Code took effect, held that the action for partition filed by
the heirs of Catalino and Galo had already prescribed. On appeal, this Court affirmed the trial
court on this point in the following terms:

Article 494 of the Civil Code provides that "no co-owner shall be obliged to remain in
the co- ownership" and that "each co-owner may demand at any time the partition of the
thing owned in common, insofar as his share is concerned." It also provides that 'no
prescription shall run in favor of a co-owner or co-heir against his co-owners or co-heirs
so long as he expressly or impliedly recognizes the co-ownership.

While the action for the partition of the thing owned in common (actio communi
dividendo or actio familiae erciscundae) does not prescribe, the co-ownership does not
last forever since it may be repudiated by a co-owner [i.e., Sixto]. In such a case, the
action for partition does not lie. What may be brought by the aggrieved co-owner [i.e.,
the heirs of Catalino and Galo] is an accion reivindicatoria or action for recovery of title
and possession. That action may be barred by prescription.

If the co-heir or co-owner having possession of the hereditary or community property,

holds the same in his own name, that is, under claim of exclusive ownership, he may
acquire the property by prescription if his possession meets all the other requirements
of the law, and after the expiration of the prescriptive period, his co-heir or co-owner
may lose their right to demand partition, and their action may then be held to have
prescribed (De los Santos vs. Santa Teresa, 44 Phil. 811).

xxx xxx xxx

(Emphasis supplied)

In the light of the foregoing discussion, it will be seen that the underscored portion of the Court's
opinion in Jardin is actually obiter. For there, the Court simply held the action for partition by the
heirs of Catalino and Galo had prescribed and did not require such heirs to start a new action
(which would have been quite pointless); on the other hand, the Court remanded the case to the
lower court for further proceedings in respect of the recovery of a 350 square meter lot which
the evidence showed was owned by the plaintiffs but wrongfully included by Sixto in the
cadastral survey of his share of the adjoining lot.

In Jardin, the claim of co-ownership asserted by the heirs of Catalino and Galo was effectively
refuted by the heirs of Sixto, who not only claimed for themselves absolute and exclusive
ownership of the disputed properties but were also in actual and adverse possesion thereof for
a substantial length of time. The Court found, further, that the action for partition initially
available to the heirs of Catalino and Galo had, as a result of the preceding circumstance,
already prescribed.
An entirely different situation, however, obtains in the case at bar. First of all, petitioner
Concepcion Roque-the co-owner seeking partition — has been and is presently in open and
continuous possession of a three-fourths (3/4) portion of the property owned in common. The
Court notes in this respect the finding of the trial court that petitioner, following execution of the
"Bilihan Lubos at Pattlluyan" on 27 November 1961, had been in "continuous occupancyof the
3/4 portion of the lot ... up to the present, and whereon plaintifrs house and that of her son are
erected. " 14Respondents do not dispute this finding of fact, although they would claim that
petitioner's possession is merely tolerated by them. Second, prior to filing in 1977 of the
Complaint in Civil Case No. 5236-M, neither of the parties involved had asserted or manifested
a claim of absolute and exclusive ownership over the whole of Lot No. 1549 adverse to that of
any of the other co-owners: in other words, co-ownership of the property had continued to be
recognized by all the owners. Consequently, the action for partition could not have and, as a
matter of fact, had not yet prescribed at the time of institution by Concepcion of the action
below.

2. Coming now to the matter regarding dismissal of the respondents'appeal, the Intermediate
Appellate Court held that inasmuch as the attack on the validity of the "Bilihan Lubos at
Patuluyan" was predicated on fraud and no action for annulment of the document had been
brought by respondents within the four (4) year prescriptive period provided under Article 1391
of the Civil Code, such action had already prescribed.

We find it unnecessary to deal here with the issue of prescription discussed by the respondent
court in its assailed decision. The facts on record clearly show that petitioner Concepcion Roque
had been in actual, open and continuous possession of a three-fourths (3/4) portion of Lot No.
1549 ever since execution of the "Bilihan Lubos at Patuluyan" in November of 1961. The Court
notes that it was only in their Answer with Compulsory Counterclaim filed with the trial court in
December of 1977 — more than sixteen (16) years later — that respondents first questioned the
genuineness and authenticity of the "Bilihan Lubos at Patuluyan." Not once during those sixteen
(16) years did respondents contest petitioner's occupation of a three-fourths (3/4) portion of Lot
No. 1549. Furthermore, if indeed it is true that respondents, as they claim, are the absolute
owners of the whole of Lot No. 1549, it is most unusual that respondents would have allowed or
tolerated such prolonged occupation by petitioner of a major portion (3/4) of the land while they,
upon the other hand, contented themselves with occupation of only a fourth thereof. This latter
circumstance, coupled with the passage of a very substantial length of time during which
petitioner all the while remained undisturbed and uninterrupted in her occupation and
possession, places respondents here in laches: respondents may no longer dispute the
existence of the co-ownership between petitioner and themselves nor the validity of petitioner's
claim of a threefourths (3/4) interest in Lot No. 1549, as they are deemed, by their unreasonably
long inaction, to have acquiesced in the coow,aership. 15 In this respect, we affirm the decision
of the respondent appellate court presently under review.

WHEREFORE, the Decision of the Intermediate Appellate Court dated 31 July 1986 in A.C.-
G.R. CV No. 02248 is SET ASIDE with respect to that portion which orders the dismissal of the
Complaint in Civil Case No. 5236-M, but is AFFIRMED with respect to that portion which orders
the dismissal of the respondents'appeal in A.C.-G.R. CV No. 02248. The Decision of Branch 9
of the Regional Trial Court of Malolos dated 27 June 1983 in Civil Case No. 5236-M is hereby
REINSTATED. No pronouncement as to costs.

SO ORDERED.
  [G.R. No. 152195. January 31, 2005]
PEDRO SEPULVEDA, SR., substituted by SOCORRO S. LAWAS, Administratrix of His
Estate, petitioner, vs. ATTY. PACIFICO S. PELAEZ, respondent.

DECISION
Before us is a petition for review on certiorari under Rule 45 of the Rules of Court, of the
Decision[1] of the Court of Appeals (CA) in CA-G.R. CV No. 43758 affirming the decision of the
Regional Trial Court (RTC) of Danao City, Branch 25, in Civil Case No. SF-175.
On December 6, 1972, private respondent Atty. Pacifico Pelaez filed a complaint against
his granduncle, Pedro Sepulveda, Sr., with the then Court of First Instance (CFI) of Cebu, for
the recovery of possession and ownership of his one-half (1/2) undivided share of several
parcels of land covered by Tax Declaration (T.D.) Nos. 28199, 18197, 18193 and 28316; his
undivided one-third (1/3) share in several other lots covered by T.D. Nos. 28304, 35090, 18228,
28310, 26308, 28714, 28311, 28312 and 28299 (all located in Danao, Cebu); and for the
partition thereof among the co-owners. The case was docketed as Civil Case No. SF-175.
The eleven (11) lots were among the twenty-five (25) parcels of land which the private
respondents mother, Dulce Sepulveda, inherited from her grandmother, Dionisia Sepulveda
under the Project of Partition[2] dated April 16, 1937 submitted by Pedro Sepulveda, Sr. as the
administrator of the formers estate, duly approved by the then CFI of Cebu in Special
Proceeding No. 778-0. Under the said deed, Pedro Sepulveda, Sr. appeared to be the owner of
an undivided portion of Lot No. 28199, while his brother and Dulces uncle Santiago Sepulveda,
was the undivided owner of one-half (1/2) of the parcels of land covered by T.D. Nos. 18197,
18193 and 28316. Dulce and her uncles, Pedro and Santiago, were likewise indicated therein
as the co-owners of the eleven other parcels of land, each with an undivided one-third (1/3)
share thereof.
In his complaint, the private respondent alleged that his mother Dulce died intestate on
March 2, 1944, and aside from himself, was survived by her husband Rodolfo Pelaez and her
mother Carlota Sepulveda. Dulces grandfather Vicente Sepulveda died intestate on October 25,
1920,[3] and Dulce was then only about four years old. According to the private respondent, his
grandmother Carlota repeatedly demanded the delivery of her mothers share in the eleven (11)
parcels of land, but Pedro Sepulveda, Sr. who by then was the Municipal Mayor of Tudela,
refused to do so. Dulce, likewise, later demanded the delivery of her share in the eleven parcels
of land, but Pedro Sepulveda, Sr. still refused, claiming that he needed to continue to possess
the property to reap the produce therefrom which he used for the payment of the realty taxes on
the subject properties. The private respondent alleged that he himself demanded the delivery of
his mothers share in the subject properties on so many occasions, the last of which was in
1972, to no avail.
The private respondent further narrated that his granduncle executed an affidavit[4] on
November 28, 1961, stating that he was the sole heir of Dionisia when she died intestate on
June 5, 1921, when, in fact, the latter was survived by her three sons, Santiago, Pedro and
Vicente. Pedro Sepulveda, Sr. also executed a Deed of Absolute Sale[5] on July 24, 1968 over
the property covered by T.D. No. 19804 (T.D. No. 35090) in favor of the City of Danao
for P7,492.00. According to the private respondent, his granduncle received this amount without
his (private respondents) knowledge.
The private respondent prayed that, after due hearing, judgment be rendered in his favor,
thus:
ON THE FIRST CAUSE OF ACTION:

1. Declaring the plaintiff the absolute owner of ONE-HALF (1/2) portion of the TWO (2)
parcels of land described in paragraph 2 of the complaint;

2. Declaring the plaintiff the absolute owner of the ONE-THIRD (1/3) portion of the NINE (9)
parcels of land described in paragraph 3 of the complaint;

3. Ordering the defendant to deliver to the plaintiff the latters ONE-THIRD (1/3) share of the
SEVEN THOUSAND FOUR HUNDRED NINETY-TWO PESOS (P7,492.00)
representing the purchase price of the parcel of land described in paragraph 3(a) of the
complaint with interest thereon until the amount is fully paid;

ON THE SECOND CAUSE OF ACTION:

1. Ordering the partition and segregation of the ONE-HALF (1/2) portion belonging to the
plaintiff of the TWO (2) parcels of land described in paragraph 2 of the complaint;

2. Ordering the partition and segregation of the ONE-THIRD (1/3) portion belonging to the
plaintiff of the remaining EIGHT (8) parcels of land described in paragraph 3 of the
complaint;

COMMON TO THE FIRST AND SECOND CAUSES OF ACTION:

1. Ordering the defendant to pay the plaintiff the amount of FIFTY THOUSAND PESOS
(P50,000.00) as moral damages;

2. Ordering the defendant to pay the plaintiff exemplary damages the amount of which is left to
the discretion of this Honorable Court;

3. Ordering the defendant to deliver to the plaintiff the latters share of the fruits of the ELEVEN
(11) parcels of land subject-matter of this complaint, the value of which will be proven
during the trial;

4. Ordering the defendant to pay the plaintiff actual litigation expenses, the value of which will
be proven during the trial;

5. Ordering the defendant to pay attorneys fee in the amount of TWELVE THOUSAND PESOS
(P12,000.00);

6. Granting to the plaintiff such other reliefs and remedies as he may be entitled to in
accordance with law and equity.[6]

In his answer to the complaint, Pedro Sepulveda, Sr. admitted having executed a deed of
sale over the parcel of land covered by T.D. No. 19804 in favor of Danao City, but averred that
the latter failed to pay the purchase price thereof; besides, the private respondent had no right
to share in the proceeds of the said sale. He likewise denied having received any demand for
the delivery of Dulces share of the subject properties from the latters mother Carlota, or from the
private respondent.
 During the trial, Pedro Sepulveda, Sr. died intestate. A petition for the settlement of his
estate was filed on May 8, 1975 with the RTC of Cebu, docketed as Special Proceeding No. SF-
37. His daughter, petitioner Socorro Sepulveda Lawas, was appointed administratrix of his
estate in July 1976. In compliance with the decision of this Court in Lawas v. Court of Appeals,
[7]
 docketed as G.R. No. L-45809 and promulgated on December 12, 1986, the deceased was
substituted by the petitioner.
To prove the delivery of Dulces share under the project of partition, the petitioner presented
the Affidavit of Consolidation she executed in October 1940 covering thirteen (13) of the twenty-
five (25) parcels of land which were deeded to her under the Project of Partition, [8] as well as the
Order[9]dated March 24, 1962 of the then CFI in Special Proceeding No. 778-R, denying
Carlotas motion for the reconstitution of the records of the said case, and for the delivery of
Dulces share in the eleven parcels of land. The court likewise declared therein that Dulce,
through her grandchildren and her mother, Carlota, had already received her share of the estate
from Pedro Sepulveda, Sr. as early as January 10, 1938.
According to the petitioner, Dulce and Pedro Sepulveda, Sr. had a verbal agreement
wherein the eleven parcels of land covered by the complaint would serve as the latters
compensation for his services as administrator of Dionisias estate. Thus, upon the termination
of Special Proceeding No. 778-0, and subsequent to the distribution of the shares of Dionisias
heirs, Pedro Sepulveda, Sr. then became the sole owner of Dulces shares.
The petitioner likewise adduced evidence that Santiago Sepulveda died intestate and was
survived by his wife, Paz Velez Sepulveda and their then minor children. [10] It was pointed out
that the private respondent failed to implead Paz Sepulveda and her minor children as parties-
defendants in the complaint.
It was further claimed that Pedro Sepulveda, Sr. declared the property covered by T.D. No.
18199[11] under his name for taxation purposes since the beginning of 1948.[12] It was likewise
alleged that the eleven (11) parcels of land deeded to Dulce under the Project of Partition had
been declared for taxation purposes under the name of Pedro Sepulveda since 1974, and that
he and his heirs paid the realty taxes thereon.[13]
On June 7, 1993, the trial court rendered judgment [14] in favor of the private respondent.
The fallo of the decision reads:

WHEREFORE, premises considered, judgment is hereby rendered in favor of plaintiff and against the
defendant by declaring that the plaintiff is legally and rightfully entitled to the one half (1/2) portion of
the two (2) parcels of land described in paragraph 2 of the Complaint and to the one third (1/3) portion of
the nine (9) parcels of land described in paragraph 3 of the complaint as co-owner thereof, and ordering
the partition and segregation of the said one half (1/2) portion of the said two (2) parcels of land and of
the said one third (1/3) portion of the nine (9) parcels of land, and in the partition thereof, the mechanics
of partition outlined in Rule 69 of the Revised Rules of Court must be followed (Magallon vs. Montejo,
146 SCRA 282); ordering the defendant Socorro Lawas, as administratrix of the Estate of Pedro
Sepulveda, Sr., to deliver to plaintiff the latters one third (1/3) share of the P7,492.00 representing the
purchase price of the parcel of land sold to Danao City with interest of twelve [per] centum (12%) per
annum (Reformina vs. Tomol, 139 SCRA 260) from the date of filing of the Complaint until the amount
due to plaintiff is fully paid, to pay attorneys fees to plaintiffs attorney in the sum of P10,000.00, and to
pay the costs. The counterclaim is hereby dismissed.

SO ORDERED.[15]
 The trial court ruled that the private respondents action for reconveyance based on
constructive trust had not yet prescribed when the complaint was filed; that he was entitled to a
share in the proceeds of the sale of the property to Danao City; and that the partition of the
subject property among the adjudicatees thereof was in order.
The petitioner appealed the decision to the CA, which rendered judgment on January 31,
2002, affirming the appealed decision with modification.
The petitioner now comes to the Court via a petition for review on certiorari, contending that
the appellate court erred as follows:

1. THE COURT OF APPEALS ERRED IN THE INCORRECT APPLICATION OF ART. 494 OF

THE CIVIL CODE AND IN UPHOLDING THE REGIONAL TRIAL COURTS FINDING
THAT A TRUST RELATIONSHIP WAS CREATED BETWEEN HEREIN RESPONDENT
AND PEDRO SEPULVEDA [SR.].

2. THE COURT OF APPEALS ERRED IN NOT APPLYING THE LAWS ON PRESCRIPTION

AND LACHES TO THE FACTS AS PROVEN IN THE CASE AGAINST HEREIN
RESPONDENT.

3. THE COURT OF APPEALS ERRED IN UPHOLDING THE FINDING OF THE REGIONAL

TRIAL COURT, BRANCH 25 IN DANAO CITY THAT PAYMENT WAS MADE BY
DANAO CITY FOR ONE (1) OF THE ELEVEN (11) PARCELS INVOLVED IN THE CASE
AND OF WHICH HEREIN RESPONDENT SHOULD BE PAID BY PETITIONER ONE
THIRD (1/3) OF THE PURCHASE PRICE.

4. THE COURT OF APPEALS ERRED IN AWARDING MORAL AND EXEMPLARY

DAMAGES AND A SHARE IN THE RENTS AND PROFITS OF THE ELEVEN (11)
PARCELS TO HEREIN RESPONDENT.

5. THE COURT OF APPEALS ERRED IN UPHOLDING THE REGIONAL TRIAL COURTS

FINDING THAT ATTORNEYS FEES ARE TO BE AWARDED AND EVEN INCREASING
THE AMOUNT THEREOF.[16]

The petition is granted for the sole reason that the respondent failed to implead as parties,
all the indispensable parties in his complaint.
As gleaned from the material averments of the complaint and the reliefs prayed for therein,
the private respondent, as plaintiff therein, sought the recovery of the ownership and possession
of the ten (10) parcels of land and the partition thereof; and for the payment of his share in the
proceeds of the sale of the property which Pedro Sepulveda, Sr. sold to Danao City amounting
to P7,492.00, which Pedro Sepulveda, Sr. claimed was left unpaid. It appears that when the
private respondent filed the complaint, his father, Rodolfo Pelaez, was still alive. Thus, when his
mother Dulce Pelaez died intestate on March 2, 1944, she was survived by her husband
Rodolfo and their son, the private respondent. Under Article 996 of the New Civil Code,
[17]
 Rodolfo Pelaez, as surviving spouse, is entitled to a portion in usufruct equal to that
corresponding by way of legitime to each of the legitimate children who has not received any
betterment. The rights of the usufructuary are provided in Articles 471 to 490 of the old Civil
Code.[18] In Gamis v. Court of Appeals,[19] we held that:
Under articles 807 and 834 of the old Civil Code the surviving spouse is a forced heir and entitled to a
share in usufruct in the estate of the deceased spouse equal to that which by way of legitime corresponds
or belongs to each of the legitimate children or descendants who have not been bettered or have not
received any share in the one-third share destined for betterment. The right of the surviving spouse to
have a share in usufruct in the estate of the deceased spouse is provided by law of which such spouse
cannot be deprived and which cannot be ignored. Of course, the spouse may waive it but the waiver must
be express.

Section 1, Rule 69 of the Rules of Court provides that in an action for partition, all persons
interested in the property shall be joined as defendants.

Section 1. Complaint in action for partition of real estate.- A person having the right to compel the
partition of real estate may do so as in this rule prescribed, setting forth in his complaint the nature and
extent of his title and an adequate description of the real estate of which partition is demanded and joining
as defendants all the other persons interested in the property.

Thus, all the co-heirs and persons having an interest in the property are indispensable
parties; as such, an action for partition will not lie without the joinder of the said parties. [20] The
mere fact that Pedro Sepulveda, Sr. has repudiated the co-ownership between him and the
respondent does not deprive the trial court of jurisdiction to take cognizance of the action for
partition, for, in a complaint for partition, the plaintiff seeks, first, a declaration that he is a co-
owner of the subject property; and, second, the conveyance of his lawful shares. [21] As the Court
ruled in De Mesa v. Court of Appeals:[22]

The first stage of an action for judicial partition and/or accounting is concerned with the determination of
whether or not a co-ownership in fact exists and a partition is proper, that is, it is not otherwise legally
proscribed and may be made by voluntary agreement of all the parties interested in the property. This
phase may end in a declaration that plaintiff is not entitled to the desired partition either because a co-
ownership does not exist or a partition is legally prohibited. It may also end, on the other hand, with an
adjudgment that a co-ownership does in truth exist, that partition is proper in the premises, and that an
accounting of rents and profits received by the defendant from the real estate in question is in order. In the
latter case, the parties may, if they are able to agree, make partition among themselves by proper
instruments of conveyance, and the court shall confirm the partition so agreed upon by all the parties. In
either case, whether the action is dismissed or partition and/or accounting is decreed, the order is a final
one and may be appealed by any party aggrieved thereby.

The second stage commences when the parties are unable to agree upon the partition ordered by the court.
In that event, partition shall be effected for the parties by the court with the assistance of not more than
three (3) commissioners. This second phase may also deal with the rendition of the accounting itself and
its approval by the Court after the parties have been accorded the opportunity to be heard thereon, and an
award for the recovery by the party or parties thereto entitled of their just shares in the rents and profits of
the real estate in question.[23]

In the present action, the private respondent, as the plaintiff in the trial court, failed to
implead the following indispensable parties: his father, Rodolfo Pelaez; the heirs of Santiago
Sepulveda, namely, Paz Sepulveda and their children; and the City of Danao which purchased
the property covered by T.D. 19804 (T.D. No. 35090) from Pedro Sepulveda, Sr. and
maintained that it had failed to pay for the purchase price of the property.
 Rodolfo Pelaez is an indispensable party he being entitled to a share in usufruct, equal to
the share of the respondent in the subject properties. There is no showing that Rodolfo Pelaez
had waived his right to usufruct.
Section 7, Rule 3 of the Rules of Court reads:

SEC. 7. Compulsory joinder of indispensable parties. Parties in interest without whom no final
determination can be had of an action shall be joined either as plaintiffs or defendants.

Indeed, the presence of all indispensable parties is a condition sine qua non for the
exercise of judicial power. It is precisely when an indispensable party is not before the court that
the action should be dismissed. Thus, the plaintiff is mandated to implead all the indispensable
parties, considering that the absence of one such party renders all subsequent actions of the
court null and void for want of authority to act, not only as to the absent parties but even as to
those present.[24] One who is a party to a case is not bound by any decision of the court,
otherwise, he will be deprived of his right to due process. Without the presence of all the other
heirs as plaintiffs, the trial court could not validly render judgment and grant relief in favor of the
private respondent. The failure of the private respondent to implead the other heirs as parties-
plaintiffs constituted a legal obstacle to the trial court and the appellate courts exercise of
judicial power over the said case, and rendered any orders or judgments rendered therein a
nullity.[25]
To reiterate, the absence of an indispensable party renders all subsequent actions of the
court null and void for want of authority to act, not only as to the absent parties but even as to
those present.[26] Hence, the trial court should have ordered the dismissal of the complaint.[27]
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decisions of the
Court of Appeals in CA-G.R. CV No. 43758 and of the Regional Trial Court are SET ASIDE. The
Regional Trial Court is ORDERED to dismiss the complaint without prejudice. No
pronouncement as to costs.
SO ORDERED.
G.R. No. 109387 April 25, 1994

LEONARDO LIM DE MESA, petitioner, 

vs.
HON. COURT OF APPEALS, HON. RODRIGO V. COSICO, as Presiding Judge of the Regional
Trial Court, Biñan, Laguna; ROGELIO S. MOLINA, Branch Sheriff; and ALFREDO,
NUMERIANO, ZENAIDA, ROGELIO, YOLANDA, OLIVIA, BENJAMIN, TERESITA and WILSON,
all surnamed LIM DE MESA, respondents.

Renato B. Vasquez for petitioner.

Rolando N.E. De Leon for private respondents.

REGALADO, J.:

In a resolution promulgated on March 4, 1993 in CA-G.R. SP No. 29818, entitled ("Leonardo Lim de
Mesa vs. Hon. Rodrigo V. Cosico, etc., et al.,") respondent court denied due course to the petition
for certiorari which sought the nullification of three orders of the Regional Trial Court, Branch 24,
Biñan, Laguna which were issued as incidents of Civil Case No. B-1942 thereof. Petitioner is now
before us impugning the forestalled resolution.  1

The case stemmed from an action for partition filed by herein private respondents against their
eldest brother, herein petitioner Leonardo Lim de Mesa, and his sister Leticia Lim de Mesa, which
suit was docketed in the Regional Trial Court of Laguna, Branch 24, as Civil Case No. B-1942.
Private respondents prayed therein for the partition of the property left by their parents, Manuel de
Mesa and Lucia Lim, consisting of a house and lot in Sta. Rosa Estate Subdivision, Laguna and a
funeral parlor; that petitioner Leonardo de Mesa be compelled to render an accounting of the income
of the funeral parlor business from October 24, 1980, the date when the mother of the parties died;
and that private respondent Rogelio Lim de Mesa be declared the owner of eight-tenths (8 /10) of
the entire estate, as the other heirs had assigned their interests to him.

In his answer, petitioner admitted that their deceased parents left the house and lot described in the
complaint, but claimed that the funeral parlor, known as Lim de Mesa Memorial Chapel, was solely
owned by him. Petitioner also alleged that their deceased parents left other properties and
businesses which are in the possession and under the management of the two other plaintiffs
therein.

After trial, the court rendered the following judgment:

WHEREFORE, in view of all the foregoing considerations, judgment is hereby rendered as

follows:
 1. Ordering the partition of the estate of the deceased spouses Manuel de Mesa and Lucia
Lim described in paragraph 1 of the complaint as Lot No. 329 of the Sta. Rosa Estate
Subdivision with a residential house of strong material(s) and a funeral business therein, all
located at Sta. Rosa, Laguna, among the following surviving heirs in the following
proportions;

1. Rogelio Lim de Mesa - 9.8787872 /13 shares representing the sum total of his
participations plus all the shares sold to him by co-heirs Alfredo, Numeriano, Zenaida,
Yolanda, Olivia, Benjamin, and Teresita, all surnamed Lim de Mesa

2. Leonardo Lim de Mesa - 0.6515151 /13 share

3. Leticia Lim de Mesa - 1.818181 /13 share

4. Wilson Lim de Mesa - 0.6515151 /13 share

as regards the property of the estate, namely, Lot No. 329 and the residential house of
strong material(s) erected therein, and —

1. Rogelio Lim de Mesa - 8 /11 shares

2. Leonardo Lim de Mesa - 1 /11 shares

3. Leticia Lim de Mesa - 1 /11 shares

4. Wilson Lim de Mesa - 1 /11 shares

as regards the proceeds from the funeral business from November 1980 up to the
present after an accounting thereof to be rendered by Leonardo Lim de Mesa.

2. Ordering the defendants Leonardo Lim de Mesa and Leticia Lim de Mesa and
plaintiff Wilson Lim de Mesa to execute a deed of confirmation of the Extra-Judicial
Partition with Sale (Exhibit "H") and "Reformation of Instrument" (Exhibit "I") dated
January 27, 1983 and November 12, 1984, respectively.

3. Ordering defendant Leonardo Lim de Mesa to render an accounting of the

operation and management of the funeral business from November 1980 up to the
present within thirty (30) days from the date this decision becomes final.

4. Ordering the defendants to pay the plaintiffs the amount of P30,000.00 as moral
damages and the amount of P20,000.00 as reimbursement for attorney's fees.

5. Ordering defendants to pay costs of suits.  2

On appeal, the Court of Appeals affirmed the aforesaid judgment with some modifications, that is, by
deleting those portions thereof directing therein defendants Leonardo and Leticia Lim de Mesa,
aside from plaintiff Wilson Lim de Mesa, to execute a deed confirming the extrajudicial partition with
sale and the reformation of instrument, and to pay the awards for moral damages and attorney's
fees.   Not satisfied therewith, petitioners further sought relief from this Court which, however, denied
3

their appeal in a resolution dated January 27, 1992. On June 4, 1992, entry of said judgment was
made, thereby making the judgment of the lower court, as modified by respondent Court of Appeals,
final and executory.

Thereafter, private respondents filed a motion for execution which was granted by the lower
court.   A writ of execution was issued, but the same was returned unsatisfied on September 21,
4

1992 due to petitioner's refusal to comply with the same. Private respondents then filed a motion to
enforce judgment which was granted by the lower court in its order dated October 14, 1992.  5

Subsequently, petitioner filed a motion to be furnished copies of the basic pleadings and/or orders.
Private respondents filed their opposition thereto, arguing that petitioner was not entitled to the relief
prayed for since private respondents were entitled to execution as a matter of right, and that all
incidental matters flowing therefrom may be resolved motu proprio without prior notice and hearing
to petitioner. The court a quo acted on petitioner's motion by an order, dated November 13, 1992,
directing private respondent Rogelio Lim de Mesa to furnish petitioner a copy of the deed of partition
and such documents as the latter would specify.  6

Private respondents then filed a motion to resolve the incident subject of the order of October 14,
1992 and this, in turn, led to the issuance of the lower court's order dated November 18,
1992.   Upon motion filed by private respondents, the lower court issued another order, dated
7

November 25, 1992, granting the former's motion for a writ of possession and delineation of property
lines.   Petitioner thereafter moved for the reconsideration of the orders dated November 18 and 25,
8

1992, contending that the same were issued in violation of Section 4, Rule 15 of the Rules of Court,
as these were issued ex parte.   In its order dated December 23, 1992, the court below denied the
9

motion for reconsideration.  10

A petition for certiorari was then filed by petitioner in the Court of Appeals assailing, on the same
grounds, the following orders of the trial court, to wit:

1. ORDER dated October 14, 1992 designating Atty. Luzod, Jr. to sign the deed of partition
for and in behalf of Leonardo Lim de Mesa, petitioner, to enforce the judgment, and ordering
petitioner to explain within 10 days from notice why he should not be cited (for) contempt of
court pursuant to Sec. 3 (a) in relation to Sec. 6 and 7, Rule 71 of the Revised Rules of
Court;

2. ORDER dated November 18, 1992, giving petitioner an extension of 15 days to render an
accounting and in case of failure, to cite him (for) contempt of court (for) violation of Sec. 3(b)
in relation to Sec. 6, (Rule 71), Rules of Court, and if he continues to disobey, the public
respondent may be constrained to order his imprisonment.

3. ORDER dated November 25, 1992, granting a writ of possession directing the respondent
Sheriff to place private respondent Rogelio Lim de Mesa in possession of the property
pertaining to him by virtue of ANNEXES "X", "A", to "A-4".  11

In its resolution of March 4, 1993, as stated at the outset, respondent Court of Appeals ruled against
therein petitioner,   hence the instant petition with the following assignment of errors:
12

1. The Court of Appeals erred in applying Rule 39 of the Rules of Court and, therefore, in
concluding that the judgment in the action for partition in Civil Case No. B-1942 became
final and executory as of June 4, 1992 and the prevailing party is entitled to a writ of
execution the issuance of which is a ministerial duty of the court.
 2. The Court of Appeals also erred in holding that the three (3) assailed orders in Civil
Case No. B-1942 were issued consequent to the execution of a judgment that has
already become final and executory.

3. The Court of Appeals finally erred in holding that the three (3) assailed orders in Civil
Case No. B-1942 having been issued ex-parte is of no moment where the execution is a
matter of right and the losing party need not be given advance notice of hearing of such
motion. 13

It is from the foregoing perceptions that the main thrust of herein petitioner's arguments postulates
the supposed nullity of the writ of execution issued by the trial court since the same was issued
without prior notice and hearing. We disagree.

Jurisprudentially entrenched is the rule that a judgment ordering partition with damages is final and
duly appealable, notwithstanding the fact, which petitioner seeks to capitalize on, that further
proceedings will still have to take place in the trial court. 14

There are two stages involved in the special civil action of judicial partition and accounting under
Rule 69 of the Rules of Court.

The first stage of an action for judicial partition and/or accounting is concerned with the
determination of whether or not a co-ownership in fact exists and a partition is proper, that is, it is not
otherwise legally proscribed and may be made by voluntary agreement of all the parties interested in
the property. This phase may end in a declaration that plaintiff is not entitled to the desired partition
either because a co-ownership does not exist or a partition is legally prohibited. It may also end, on
the other hand, with an adjudgment that a co-ownership does in truth exist, that partition is proper in
the premises, and that an accounting of rents and profits received by the defendant from the real
estate in question is in order. In the latter case, "the parties may, if they are able to agree, make
partition among themselves by proper instruments of conveyance, and the court shall confirm the
partition so agreed upon by all the parties."   In either case, whether the action is dismissed or
15

partition and/or accounting is decreed, the order is a final one and may be appealed by any party
aggrieved thereby.  16

The second stage commences when the parties are unable to agree upon the partition ordered by
the court. In that event, partition shall be effected for the parties by the court with the assistance of
not more than three (3) commissioners. This second phase may also deal with the rendition of the
accounting itself and its approval by the Court after the parties have been accorded the opportunity
to be heard thereon, and an award for the recovery by the party or parties thereto entitled of their
just shares in the rents and profits of the real estate in question. Such an order is, to be sure, also
final and appealable.  17

In the decision ordering partition, the execution of that part of the judgment which will not necessitate
any further proceedings may be enforced. Further proceedings, such as the appointment of
commissioners to carry out the partition and the rendition and approval of the accounting, may be
had without prejudice to the execution of that part of the judgment which needs no further
proceedings. Thus, it has been held that execution was entirely proper to enforce the defendant's
obligation to render an accounting and to exact payment of the money value of the plaintiffs' shares
in the personal property and attorney's fees due defendants, as well as the costs of the suit and
damages.  18

In the present case, the decision ordering partition and the rendition of accounting had already
become final and executory. The execution thereof thus became a matter of right on the part of the
plaintiffs, herein private respondents, and is a mandatory and ministerial duty on the part of the
court. Once a judgment becomes final and executory, the prevailing party can have it executed as a
matter of right, and the judgment debtor need not be given advance notice of the application for
execution nor be afforded prior hearings thereon.  19

On the bases of the foregoing considerations, therefore, the Court of Appeals acted correctly in
holding that the failure to serve a copy of the motion for execution on petitioner is not a fatal defect.
In fact, there was no necessity for such service.

However, notwithstanding our aforesaid observations, the orders of the trial court dated October 14,
1992 and November 25, 1992, respectively directing Atty. Luzod, Jr. to sign the deed of partition for
and in behalf of petitioner and granting the writ of possession, must be set aside for having been
rendered in excess of jurisdiction.

The trial court cannot compel herein petitioner to sign the extrajudicial deed of partition prepared
solely by private respondents. Concomitantly, it cannot issue a writ of possession pursuant to the
said extrajudicial partition.

An action for partition, which is typically brought by a person claiming to be the owner of a specified
property against a defendant or defendants whom the plaintiff recognizes to be his co-owners, may
readily be seen to simultaneously present two principal issues. Firstly, there is the issue of whether
the plaintiff is indeed a co-owner of the property sought to be partitioned. Secondly, assuming that
the plaintiff successfully hurdles the first issue, there is the secondary issue of how the property is to
be divided between the plaintiff and the defendants, that is, what portion should go to which co-
owner. 20

After a judgment is rendered in an action for partition declaring that the property in question shall be
divided among the parties thereto, the procedure provided by law thereafter is that, if the parties can
agree among themselves, then the partition can be made by them through the proper instruments of
conveyance which shall be submitted for approval of the court, and such partition with the court
order confirming the same shall be recorded in the office of the proper registry of deeds. But, if the
parties are unable to agree upon the partition, the court shall by order appoint not more than three
(3) competent and disinterested persons as commissioners to make the partition, commanding them
to set off to the plaintiff and to each party in interest such part and proportion of the property as the
court in such order shall direct. 
21

The decision in Civil Case No. B-1942 merely declares that partition is proper and forthwith specified
therein the respective aliquot shares of the parties to the real estate and to the proceeds of the
funeral business. Withal, it did not specifically state, by metes and bounds and by adequate
description, the particular portion of the real estate to be assigned to each party. Actual partition is,
therefore, necessary. Since the parties, however, cannot agree on the actual division and allocation
of the property held in common, the trial court should order the appointment of commissioners to
carry out the partition, as provided by Section 3 of Rule 69.

WHEREFORE, the assailed resolution of respondent Court of Appeals is hereby MODIFIED and the
questioned orders of the trial court dated October 14, 1992 and November 25, 1992 are hereby SET
ASIDE. The court a quo is directed to immediately appoint and constitute the necessary number of
commissioners who shall expeditiously effect the partition of the subject property in accordance with
Rule 69 of the Rules of Court.

SO ORDERED.
G.R. No. L-14352 March 27, 1961

DOROTEA CONFESOR, ET AL. Petitioners, vs. HON. PANTALEON PELAYO, ET AL.,

Respondents.

On March 29, 1952, Deogracias Umadhay, et al., respondents herein, filed an action for partition in
the Court of First Instance of Iloilo praying that a parcel of la known as Lot No. 3570 of the Cadastral
Survey of Sta. Barbara, Iloilo, be partitioned between them and the heirs of Juan Hingco, petitioners
herein, in the proportion one-half each.

Petitioners interposed the defense that they were absolute and exclusive owners of the entire land
and, consequently, objected to the requested partition. After trial the court rejected petitioners' claim
of exclusive ownership and, accordingly, ordered that the land be divided in two equal parts, one
part to belong to respondents an the other part to petitioners. Since the order is interlocutory and not
subject to appeal, the court proceeded with to appoint a commissioner charged with the task
effecting the partition of the land. The commissioner submitted two plans which he identified as Plan
No. 1 and Plan No. 2. Plan No. 1 is the subdivision scheme pro posed by respondents while Plan
No. 2 is the plan proposed by petitioners. Both plans would give respondents the same area as
petitioners, but the latter would want to give to respondents Lot No. 2 in Plan No. 2, giving to
themselves Lot No. 1. The trial court resolved the dispute stating "Lot No. 1 is hereby adjudicated to
plaintiffs (respondents herein) who may in turn divide it by and among themselves. Lot No. 2 is
hereby adjudicated to defendants (petitioners herein) who may likewise divide it by and among
themselves."

Petitioners took the case to the Court of Appeals which in due time affirmed in toto the ruling of the
trial court. This decision having become final, the trial court, upon petition of respondents, issued a
writ of execution ordering respondents to be placed in possession of the portion of land adjudicated
to them in the partition. To this order petitioners interposed a vigorous objection contending that
since in the dispositive part of the decision of both the trial court as well as of the Court of Appeals
nothing is provided that respondents were to be placed in possession of the lot adjudicated to them
the court could not amend the same by adding thereto a new matter as was done by the trial court.
Moreover, petitioners have a house of strong materials built, on the lot adjudicated to respondents
as well as other improvements in the form of crops of which they cannot be deprived without the
corresponding indemnity. The trial court having denied the petition for reconsideration, petitioners
interposed the present petition for certiorari.

In ordering respondents to be placed in possession of the lot adjudicated to them even if the
decision is silent in this respect, the trial court made the following comment:

The court believes that the opposition is without merit. This action is a special civil action for partition
as prescribed by Rule 71 of the Rules of Court. There is nothing in the said Rule from which we can
infer that after the approval by the court of the report of the commissioner another action should be
maintained for the delivery to plaintiffs of the portion of the property that has been allotted to them.
The case cited by defendants is not in point because the same was not an action for partition.
Apparently it was an action for declaration of ownership. After the approval by the court of the
partition made by the commissioner, each party is entitled to the possession of the portion assigned
to him in the instrument of partition without the further necessity of instituting another action for
possession. When the partition was made by the commissioner as ordered by the court and
pursuant to Section 3, Rule 71 of the Rules of Court, said commissioner had taken into account the
improvements existing on the property to be partitioned. Before making the partition, the
Commissioner had complied with the provisions of Section 4, Rule 71 of the Rules of Court which
says that:

... In making the partition, the commissioner shall view and examine the real estate, after due notice
to the parties to attend at such view and examination, and shall hear the parties as to their
preference in the portion of the property to be set apart to them and the comparative value thereof,
and shall set apart the same to the several parties in such lots or parcels as will be most
advantageous and equitable, having due regard to the improvements situation and quality of the
different parts thereof.

We find the foregoing comment correct. The original action of this case is one of partition. It is the
purpose of partition to put an end to the common tenancy of land or co-ownership. It seeks a
severance of the individual interest of each joint owners vesting in each a sole estate in specific
property and giving to each one the right to enjoy his estate without supervision or interference from
the other. The judgment of the trial court ordering the partition of the property, as affirmed by the
Court of Appeals, seeks to accomplish this very purpose. Said judgment effects to convey to and
vest in each party to the action the portion of the estate assigned to him. This is in accord with
Section 11, Rule 71, of the Rules of Court, which provides:

If actual partition of the property is made, the judgment shall state definitely, by metes and bounds
and adequate description, the particular portion of the real estate assigned to each party, and the
effect of the judgment shall be to vest in each party to the action in severalty the portion of the real
estate to him.... (Emphasis supplied)

It would, therefore, be in accordance with good sense and propriety that even in the absence of a
special pronouncement as regards the delivery of the respective shares allotted to each co-owner an
execution be issued to effect such delivery in order to carry into full effect the judgment of partition.
Indeed, it would be illusory and absurd to have a partition if the same could not be carried out. The
delivery is a necessary and indispensable incident to carry into effect the purpose of partition.

True it is that, as petitioners now contend, there are some improvements on the lot allotted in the
partition to respondents consisting of a house of strong materials and some standing crop belonging
to petitioners, but their costs or value must have already been taken into account by the
commissioner in effecting the partition. In fact this is one of the duties of the commissioner. Thus, the
rule provides that "In making the partition, the commissioners shall view and examine the real estate,
after due notice to the parties to attend at such view and examination, and shall hear the parties as
to their preference in the portion of the property to be set apart to them and the comparative value
thereof, and shall set apart the same to the several parties in such lots or parcels as will be most
advantageous and equitable, have due regard to the improvements, situation and quality of the
different parts thereof ." It is presumed that the commissioner has done his duty in weighing the
equities of both parties as prescribed in this rule. As properly observed by the Court of Appeals with
regard to the improvements claimed by petitioners: "The latter plan is more in consonance with
equity and justice, calculated to give both lots equal values and utilities. Furthermore, three houses
claimed by the appellants (now petitioners) are located in Lot No. 2, Plan No. 1 which was
adjudicated by the court below to the appellants."

With regard to the costs included in the writ of execution, we find nothing improper it appearing that
the decision awards costs to respondents. The payment of costs rests upon the discretion of the
court, and here the same was properly awarded considering that the defeated party had opposed
the action for partition. In conclusion, we find that the trial court did not abuse its discretion in issuing
the order now disputed by petitioners. WHEREFORE, petition is denied, with costs against
petitioners.

[G.R. No. 119730. September 2, 1999]

RODOLFO NOCEDA, petitioner, vs. COURT OF APPEALS and AURORA ARBIZO
DIRECTO, respondents.

DECISION
GONZAGA-REYES, J.:

This petition for review on certiorari under Rule 45 of the Rules of Court seeks to reverse the
decision dated March 31, 1995 of the respondent Court of Appeals [1] in CA GR CV No. 38126, affirming
with modification the decision of the Regional Trial Court, Branch 71, of Iba, Zambales, [2] in an action by
private respondent against petitioner for recovery of possession and ownership and rescission/annulment
of donation.
The facts of the case as summarized by the respondent Court are as follows: [3]

On June 1, 1981, plaintiff Aurora Directo, defendant Rodolfo Noceda, and Maria Arbizo, the daughter,
grandson, and widow, respectively, of the late Celestino Arbizo, who died in 1956, extrajudicially settled
a parcel of land, Lot 1121, located at Bitaog, San Isidro, Cabangan, Zambales, which was said to have an
area of 66,530 square meters. Plaintiff Directos share was 11,426 square meters, defendant Noceda got
13,294 square meters, and the remaining 41,810 square meters went to Maria Arbizo (Exhibit G). On the
same date, plaintiff Directo donated 625 square meters of her share to defendant Noceda, who is her
nephew being the son of her deceased sister, Carolina (Exhibit D). However, on August 17, 1981, another
extrajudicial settlement-partition of Lot 1121 was executed by plaintiff Directo, defendant Noceda, and
Maria Arbizo. Three fifths of the said land went to Maria Arbizo while plaintiff Directo and defendant
Noceda got only one-fifth each. In said extrajudicial settlement-partition as well as in the Tax Declaration
16-0032 over Lot 1121 in the name of the late Celestino Arbizo, the said parcel of land was said to have
an area of only 29,845 square meters (Exhibit C). Sometime in 1981, defendant Noceda constructed his
house on the land donated to him by plaintiff Directo.Plaintiff Directo fenced the portion allotted to her in
the extrajudicial settlement, excluding the donated portion, and constructed thereon three huts. But in
1985, defendant Noceda removed the fence earlier constructed by plaintiff Directo, occupied the three
huts (3) and fenced the entire land of plaintiff Directo without her consent. Plaintiff Directo demanded
from defendant Noceda to vacate her land, but the latter refused. Hence, plaintiff Directo filed the present
suit, a complaint for the recovery of possession and ownership and rescission/annulment of donation,
against defendant Noceda before the lower court. During the trial, the lower court ordered that a
relocation survey of Lot 1121 be conducted by Engr. Edilberto Quejada of the Bureau of Lands. After the
survey of Lot 1121 in the presence of both parties, Engr. Edilberto Quejada reported that the area of Lot
1121 stated in the extrajudicial settlement-partition of August 17, 1981 was smaller than the actual area of
Lot 1121 which is 127,298 square meters. Engr. Quejada subdivided Lot 1121, excluding the portions
occupied by third persons, known as Lot 8, the salvage zone and the road lot, on the basis of the actual
occupancy of Lot 1121 by the heirs of the late Celestino Arbizo and the extrajudicial settlement-partition
of August 17, 1981. The portion denominated as Lot A, with an area of 12,957 square meters was the
share of defendant Noceda; Lot C, with the same area as that of Lot A, was the share of plaintiff Directo,
a portion of which was donated to defendant Noceda; and Lot B, with an area of 38,872 square meters,
went to Maria Arbizo (Exhibit E).

On November 6, 1991, the Regional Trial Court, Branch 71, of Iba, Zambales rendered a decision,
the dispositive portion of which reads as follows: [4]

WHEREFORE, in view of the foregoing considerations, the Court hereby renders judgment:

(a) Declaring the Extra-Judicial Settlement-Partition dated August 19, 1981, valid;

(b) Declaring the Deed of Donation dated June 1, 1981, revoked;

(c) Ordering the defendant to vacate and reconvey that donated portion of Lot 2, Lot 1121 subject of the
Deed of Donation dated June 1, 1981 to the plaintiff or her heirs or assigns;

(d) Ordering the defendant to remove the house built inside the donated portion at the defendants expense
or pay a monthly rental of P300.00 Philippine Currency;

(e) Ordering the defendant to pay attorneys fees in the amount of P5,000.00; and

(f) To pay the cost.

Rodolfo Nocedo appealed to the respondent Court which affirmed the trial court as follows: [5]

WHEREFORE, judgment is hereby rendered, ORDERING defendant Rodolfo Noceda to VACATE the
portion known as Lot C of Lot 1121 per Exhibit E, which was allotted to plaintiff Aurora Arbizo
Directo. Except for this modification, the Decision, dated November 6, 1991, of the RTC-Iba, Zambales,
Branch 71, in Civil Case No. RTC-354-I, is hereby AFFIRMED in all other respects. Costs against
defendant Rodolfo Noceda.

Dissatisfied, petitioner filed the instant petition for review with the following assignment of errors: [6]

THE COURT OF APPEALS ERRED IN HOLDING THAT THE SUBJECT PROPERTY IDENTIFIED
AS LOT 1121 CONTAINS AN AREA IN EXCESS OF THAT STATED IN ITS TAX DECLARATION.

THE COURT OF APPEALS ERRED IN HOLDING THAT LOT 1121 SHOULD BE PARTITIONED
IN ACCORDANCE WITH THE EXTRA-JUDICIAL SETTLEMENT DATED 17 AUGUST 1981.

THE COURT OF APPEALS ERRED IN ADJUDICATING AND ALLOTING LOT C AS APPEARING

IN THE SURVEY PLAN PREPARED BY GEODETIC ENGINEER EDILBERTO QUEJADA TO THE
RESPONDENT.

THE COURT OF APPEALS ERRED IN FINDING THAT THE PETITIONER USURPED AN AREA
ADJUDICATED TO THE RESPONDENT.

THE COURT OF APPEALS ERRED IN REVOKING THE DEED OF DONATION DATED 1 JUNE
1981.
 The first issue raised refers to the actual area of the subject lot known as Lot 1121, which was
registered under Tax Declaration No. 16-0032 under the name of the late Celestino Arbizo.  Petitioner
claims that Tax Declaration No. 16-0032 contains only an area of 29,845 sq. meter; thus the respondent
Court exceeded its judicial authority when it sustained the lower courts findings that the subject property
actually contains an area of 127,289 square meters.
We find the argument unmeritorious. The records disclose that the trial court in an Order dated June
8, 1987 gave both parties to this case the chance to have the subject property re-surveyed by a licensed
surveyor to determine the actual area of Lot 1121. [7] Plaintiff Aurora Directo filed a motion/compliance
where she suggested that Geodetic Engineer Edilberto V. Quejada of the Bureau of Lands, Iba, Zambales
be commissioned to undertake the survey[8] said motion was also sent to defendants counsel, Atty.
Eufracio Pagunuran for Comment, [9] but Atty. Pagunuran however failed to file his Comment within the
given period. Thus the trial court designated Engineer Quejada to undertake the survey of Lot 1121.
[10]
 Petitioner Noceda through counsel belatedly filed his Comment without any opposition to the
appointment of Engineer Quejada but proposed that the latter be tasked to solely (a) re-survey, determine
and identify the metes and bounds of the lot covered by Tax Declaration No. 16-0032; (b) to identify the
areas occupied by the parties therein; and (c) to conduct the re-survey with notice and in the presence of
the parties therein and their respective counsels. [11] The Comment was not, however, acted upon by the
trial court in view of its earlier Order directing Engineer Quejada to undertake the survey of the land.
[12]
 Engr. Quejada conducted the survey with the conformity and in the presence of both parties, taking
into consideration the extrajudicial partition dated August 17, 1981, deed of donation dated June 1, 1981
executed by plaintiff Aurora Directo in favor of defendant Rodolfo Noceda and the actual area occupied
by the parties,[13] as well as the sketch plan[14] and the technical description of Lot 1121 taken from the
Records Section of the Bureau of Lands, Manila. [15] The report and the survey plan submitted by Engr.
Quejada were approved by the Trial Court in an Order dated December 7, 1987. [16] These circumstances
show that the lower court ordered the re-survey of the lot to determine the actual area of Lot 1121 and
such survey was done with the conformity and in the presence of both parties. The actual land area based
on the survey plan which was conducted in the presence of both parties, showed a much bigger area than
the area declared in the tax declaration but such differences are not uncommon as early tax declarations
are, more often than not, based on approximation or estimation rather than on computation. [17] We hold
that the respondent court did not err in sustaining the trial courts findings that the actual area of Lot 1121
is 127,289 square meters.
Petitioner also contends that said judicial determination improperly encroaches on the rights and
claims of third persons who were never impleaded below; that the subject lot was also declared in the
name of one Cecilia Obispo and a Free Patent over the said lot was also issued in her name and that there
are several residential houses constructed and existing on Lot 8 of lot 1121, thus these
possessors/occupants of Lot 8 should be joined as defendants for their non-inclusion would be fatal to
respondents cause of action.
We find no merit in this argument. The respondent Court correctly ratiocinated on this issue as
follows:[18]

The fact that Cecilia Obispo has tax declarations in her name over Lot 1121 and several persons occupied
a portion thereof did not make them indispensable parties in the present case. Defendant Noceda merely
presented the tax declarations in the name of Cecilia Obispo without the alleged free patent in her
name. Moreover, no evidence was presented showing that Cecilia Obispo possessed or claimed
possession of Lot 1121. Tax receipts and declarations of ownership for tax purposes are not conclusive
evidence of ownership of property (Republic vs. Intermediate Appellate Court, 224 SCRA 285).

It was not necessary that the occupants of a portion of Lot 1121, designated as Lot 8, be impleaded in the
present case. Lot 8, though part of Lot 1121, was excluded by Engr. Quejada in determining the
respective portions of Lot 1121 occupied by plaintiff Directo, defendant Noceda and Maria Arbizo
pursuant to the extrajudicial settlement which they executed on August 17, 1981. The result of the present
suit shall not in any way affect the occupants of Lot 8, since the issues involved in the present case are the
usurpation by defendant Noceda of the land adjudicated to plaintiff Directo and the propriety of the
cancellation of the deed of donation in favor of defendant Noceda due to his ingratitude to plaintiff
Directo.

Notably, defendants counsel requested for the appearance of Cecilia Obispo and despite notice to her
to appear in court and bring with her the alleged free patent in her name, [19] she failed to appear and even
failed to intervene to protect whatever interest and right she has over the subject lot. As to the other
possessors of residential houses in Lot 8 of Lot 1121, they are not considered as indispensable parties to
this case. A party is not indispensable to the suit if his interest in the controversy or subject matter is
distinct and divisible from the interest of the other parties and will not necessarily be prejudiced by a
judgment which does complete justice to the parties in court. [20] Private respondent is not claiming the
entire area of Lot 1121 but only a portion thereof which was adjudicated to her based on the August 17,
1981 extrajudicial settlement and which was denominated in the survey plan as Lot C of Lot 1121; thus
there was no need to implead the occupants of Lot 8.
Petitioner further claims that the subject property could not be partitioned based on the extrajudicial
settlement-partition dated August 17, 1981, since the distributive share of the heirs of the late Celestino
Arbizo and the area of Lot 1121 stated therein were different from the extrajudicial settlement executed
on June 1, 1981; that the discrepancies between the two deeds of partition with respect to the area of Lot
1121 and the respective share of the parties therein indicated that they never intended that any of the
deeds to be the final determination of the portions of Lot 1121 allotted to them; that the extrajudicial
settlement-partition of August 17, 1981 could not effectively subdivide Lot 1121 because it partitioned
only 29,845 square meters, and not its actual area of 127,298 square meters.
We see no cogent reason to disturb the findings of the respondent Court as follows: [21]

The discrepancies between the extrajudicial settlements executed by plaintiff Directo, defendant Noceda
and Maria Arbizo on June 1, 1981 and August 17, 1981 only meant that the latter was intended to
supersede the former. The signature of defendant Noceda in the extrajudicial settlement of August 17,
1981 would show his conformity to the new apportionment of Lot 1121 among the heirs of the late
Celestino Arbizo. The fact that defendant Noceda occupied the portion allotted to him in the extrajudicial
settlement, as well as the donated portion of the share of plaintiff Directo, presupposes his knowledge of
the extent of boundaries of the portion of Lot 1121 allotted to him. Moreover, the statement in the
extrajudicial settlement of August 17, 1981 with respect to the area of Lot 1121, which was 29,845 square
meters, is not conclusive because it was found out, after the relocation survey was conducted on Lot
1121, that the parties therein occupied an area larger than what they were supposed to possess per the
extrajudicial settlement- partition of August 17, 1981.

Although in the extrajudicial settlement dated August 17, 1981 the heirs of Celestino Arbizo
partitioned only a 29,845 square meter lot to conform with the area declared under tax declaration 16-
0032 yet the heirs were each actually occupying a bigger portion the total area of which exceeded 29,845
square meters. This was confirmed by Geodetic Engineer Quejada in his report submitted to the trial court
where he stated among other things:[22]
7. that upon computation of actual survey, it is informed (sic) that the area dated (sic) as per
extrajudicial settlement-partition in the name of Celestino Arbizo was smaller than the
computed lots of their actual occupancy as per survey on the ground;
 8. The Lot A, Lot B, and Lot C as appearing on prepared plan for ready reference was
subdivided, base (sic) on stated sharing as per EXTRA JUDICIAL SETTLEMENT-
PARTITION base (sic) on actual occupancy.
The survey conducted on Lot 1121 was only a confirmation of the actual areas being occupied by the
heirs taking into account the percentage proportion adjudicated to each heir on the basis of their August
17, 1981 extrajudicial settlement.
Petitioner further alleges that the said partition tries to vest in favor of a third person, Maria Arbizo, a
right over the said property notwithstanding the absence of evidence establishing that she is an heir of the
late Celestino Arbizo since Maria Arbizo was never impleaded as a party in this case and her interest over
Lot 1121 was not established.
Such contention deserves scant consideration. We find no compelling basis to disturb the finding of
the trial court on this factual issue, as follows: [23]

In effect, the defendant denies the allegation of the plaintiff that Maria Arbizo was the third wife of
Celestino Arbizo and Agripina is her half sister with a common father. On this point, the Court believes
the version of the plaintiff. The Court observes that in the Extra-Judicial Settlement-Partition(Exhibit C),
Maria Arbizo is named one of the co-heirs of the defendant, being the widow of his grandfather, Celestino
Arbizo. The names of Anacleto and Agripina do not also appear in the Extra-judicial Settlement and
Partition because according to the plaintiff, they had sold their shares to Maria Arbizo. And the defendant
is one of the signatories to the said Deed of Extra-judicial Settlement-Partition acknowledged before
Notary Public Artemio Maranon. Under the circumstances, the Court is convinced that the defendant
knew that Maria Arbizo was the widow of Celestino Arbizo and he knew of the sale of the share of
Anacleto Arbizo his share, as well as that of Agripina.When the defendant signed the Extra-Judicial
Settlement, he was already an adult since when he testified in 1989, he gave his age as 50 years old. So
that in 1981, he was already 41 years old. If he did not know all of these, the defendant would have not
agreed to the sharing and signed this document and acknowledged it before the Notary Public. And who
could have a better knowledge of the relationship of Agripina and Maria Arbizo to Celestino Arbizo than
the latters daughter? Besides, at the time of the execution of the Extra-Judicial Settlement-Partition by the
plaintiff and defendant, they were still in good terms. There was no reason for the plaintiff to favor Maria
Arbizo and Agripina Arbizo over the defendant. Furthermore, the defendant had failed to support his
allegation that when his grandfather died he had no wife and child.

We likewise find unmeritorious petitioners claim that there exist no factual and legal basis for the
adjudication of Lot C of Lot 1121 to private respondent AuroraDirecto. It bears stress that the relocation
survey plan prepared by Geodetic Engineer Quejada was based on the extrajudicial settlement dated
August 17, 1981, and the actual possession by the parties and the technical description of Lot 1121. It was
established by the survey plan that based on the actual possession of the parties, and the extrajudicial
settlement among the heirs the portion denominated as Lot C of Lot 1121 of the survey plan was being
occupied by private respondent Aurora Directo and it was also shown that it is in Lot C where the 625
square meter area donated by private respondent Directo to petitioner is located. There is no obstacle to
adjudicate Lot C to private respondent as her rightful share allotted to her in the extrajudicial settlement.
Petitioner argues that he did not usurp the property of respondent Directo since, to date, the metes
and bounds of the parcel of land left by their predecessor in interest, Celestino Arbizo, are still
undetermined since no final determination as to the exact areas properly pertaining to the parties herein;
hence they are still considered as co-owners thereof.
We do not agree.
 In this case the source of co-ownership among the heirs was intestate succession. Where there are
two or more heirs, the whole estate of the decedent is, before its partition, owned in common by such
heirs subject to the payment of debts of the deceased. [24] Partition, in general, is the separation, division
and assignment of a thing held in common among those to whom it may belong. [25] The purpose of
partition is to put an end to co-ownership. It seeks a severance of the individual interest of each co-owner,
vesting in each a sole estate in specific property and giving to each one a right to enjoy his estate without
supervision or interference from the other. [26] And one way of effecting a partition of the decedents estate
is by the heirs themselves extrajudicially. The heirs of the late Celestino Arbizo namely Maria Arbizo,
Aurora A. Directo (private respondent) and Rodolfo Noceda (petitioner) entered into an extrajudicial
settlement of the estate on August 17, 1981 and agreed to adjudicate among themselves the property left
by their predecessor-in-interest in the following manner:

To Rodolfo Noceda goes the northern one-fifth (1/5) portion containing an area of 5,989 sq. meters;

To Maria Arbizo goes the middle three-fifths (3/5) portion;

and To Aurora Arbizo goes the southern one-fifth (1/5) portion. [27]

In the survey plan submitted by Engineer Quejada, the portions indicated by red lines and numbered
alphabetically were based on the percentage proportion in the extrajudicial settlement and the actual
occupancy of each heir which resulted to these divisions as follows: [28]

Lot A; the area is 2,957 sq.m.- goes to Rodolfo A. Noceda (1/5)

Lot B; 38,872 sq.m Maria Arbizo (3/5)

Lot C 12,957 sq.m. Aurora Arbizo (1/5)

Thus, the areas allotted to each heir are now specifically delineated in the survey plan. There is no co-
ownership where portion owned is concretely determined and identifiable, though not technically
described, or that said portions are still embraced in one and the same certificate of title does not make
said portions less determinable or identifiable, or distinguishable, one from the other, nor that dominion
over each portion less exclusive, in their respective owners. [29] A partition legally made confers upon each
heir the exclusive ownership of the property adjudicated to him. [30]
We also find unmeritorious petitioners argument that since there was no effective and real partition
of the subject lot there exists no basis for the charge of usurpation and hence there is also no basis for
finding ingratitude against him. It was established that petitioner Noceda occupied not only the portion
donated to him by private respondent Aurora Arbizo-Directo but he also fenced the whole area of Lot C
which belongs to private respondent Directo, thus petitioners act of occupying the portion pertaining to
private respondent Directo without the latters knowledge and consent is an act of usurpation which is an
offense against the property of the donor and considered as an act of ingratitude of a donee against the
donor.[31] The law does not require conviction of the donee; it is enough that the offense be proved in the
action for revocation.[32]
Finally, petitioner contends that granting revocation is proper, the right to enforce the same had
already prescribed since as admitted by private respondent, petitioner usurped her property in the first
week of September 1985 while the complaint for revocation was filed on September 16, 1986, thus more
than one (1) year had passed from the alleged usurpation by petitioner of private respondents share in Lot
1121. We are not persuaded. The respondent Court rejected such argument in this wise:
Article 769 of the New Civil Code states that: The action granted to the donor by reason of ingratitude
cannot be renounced in advance. This action prescribes within one year to be counted from the time the
donor had knowledge of the fact and it was possible for him to bring the action. As expressly stated, the
donor must file the action to revoke his donation within one year from the time he had knowledge of the
ingratitude of the donee. Also, it must be shown that it was possible for the donor to institute the said
action within the same period. The concurrence of these two requisites must be shown by defendant
Noceda in order to bar the present action. Defendant Noceda failed to do so. He reckoned the one year
prescriptive period from the occurrence of the usurpation of the property of plaintiff Directo in the first
week of September, 1985, and not from the time the latter had the knowledge of the
usurpation. Moreover, defendant Noceda failed to prove that at the time plaintiff Directo acquired
knowledge of his usurpation, it was possible for plaintiff Directo to institute an action for revocation of
her donation.

The action to revoke by reason of ingratitude prescribes within one (1) year to be counted from the
time (a) the donor had knowledge of the fact; (b) provided that it was possible for him to bring the
action. It is incumbent upon petitioner to show proof of the concurrence of these two conditions in order
that the one (1) year period for bringing the action be considered to have already prescribed. No
competent proof was adduced by petitioner to prove his allegation. In Civil Cases, the party having the
burden of proof must establish his case by preponderance of evidence. [33] He who alleges a fact has the
burden of proving it and a mere allegation is not evidence. [34]
Factual findings of the Court of Appeals, supported by substantial evidence on record are final and
conclusive on the parties and carry even more weight when the Court of Appeals affirms the factual
findings of the trial court;[35] for it is not the function of this Court to re-examine all over again the oral
and documentary evidence submitted by the parties unless the findings of fact of the Court of Appeals are
not supported by the evidence on record or the judgment is based on the misapprehension of facts. [36] The
jurisdiction of this court is thus limited to reviewing errors of law unless there is a showing that the
findings complained of are totally devoid of support in the record or that they are so glaringly erroneous
as to constitute serious abuse of discretion.[37] We find no such showing in this case.
We find that both the trial court and the respondent Court had carefully considered the questions of
fact raised below and the respondent Courts conclusions are based on the evidence on record.  No cogent
reason exists for disturbing such findings. [38] We also note that petitioner in this petition merely rehashed
the same issues and arguments raised in the respondent Court in whose decision we find no reversible
error. Clearly, petitioner failed to present any substantial argument to justify a reversal of the assailed
decision.
WHEREFORE, the petition for review is hereby DENIED. Costs against appellant.
SO ORDERED.
Melo, (Chairman), Vitug, Panganiban, and Purisima, JJ., concur.
 [G.R. No. 132518. March 28, 2000]

GAVINA MAGLUCOT-AW, CATALINA ORCULLO, RICHARD ESTANO, NIDA MAGLUCOT,

MELANIA MAGLUCOT-CATUBIG, EMILIANO CATUBIG, LADISLAO
SALMA, petitioners, vs. LEOPOLDO MAGLUCOT, SEVERO MAGLUCOT, WILFREDA
MAGLUCOT-ALEJO and CONSTANCIO ALEJO, respondents.

DECISION

KAPUNAN, J.:

This petition for review on certiorari assails the Decision, dated 11 November 1997, of the Court
of Appeals in CA-G.R. CV No. 48816 which reversed and set aside the Decision, dated 13
December 1994, of the Regional Trial Court, Branch 30 of Dumaguete City, Negros Oriental in
an action for recovery of possession and damages.

The core issue in this case is whether a partition of Lot No. 1639 had been effected in 1952.
Petitioners contend that there was already a partition of said lot; hence, they are entitled to
exclusive possession and ownership of Lot No. 1639-D, which originally formed part of Lot No.
1639 until its partition. Private respondents, upon the other hand, claim that there was no
partition; hence, they are co-owners of Lot No. 1639-D. Notably, this case presents a unique
situation where there is an order for partition but there is no showing that the sketch/subdivision
plan was submitted to the then Court of First Instance for its approval or that a decree or order
was registered in the Register of Deeds.

The antecedent facts of the case are as follows: Korte

Petitioners filed with the RTC a complaint for recovery of possession and damages
alleging, inter alia, that they are the owners of Lot No. 1639-D. Said lot was originally part of Lot
No. 1639 which was covered by Original Certificate Title No. 6775 issued in the names of
Hermogenes Olis, Bartolome Maglucot, Pascual Olis, Roberto Maglucot, Anselmo Lara and
Tomas Maglucot on 16 August 1927.[1] On 19 April 1952, Tomas Maglucot, one of the registered
owners and respondents predecessor-in-interest, filed a petition to subdivide Lot No. 1639.
[2]
 Consequently, on 13 May 1952, then CFI of Negros Oriental issued an order[3] directing the
parties to subdivide said lot into six portions as follows: Rtcspped
 a) Hermogenes Olis - lot 1639-A

b) Pascual Olis - lot 1639-B

c) Bartolome Maglucot - lot 1639-C

d) Roberto (Alberto) - lot 1639-D

Maglucot

e) Anselmo Lara - lot 1639-E

f) Tomas Maglucot - lot 1639-F.[4]

Sometime in 1963, Guillermo Maglucot rented a portion of Lot No. 1639-D (subject lot).
Subsequently, Leopoldo and Severo, both surnamed Maglucot, rented portions of subject lot in
1964 and 1969, respectively, and each paying rentals therefor. Said respondents built houses
on their corresponding leased lots. They paid the rental amount of P100.00 per annum to Mrs.
Ruperta Salma, who represented the heirs of Roberto Maglucot, petitioners predecessor-in-
interest. In December 1992, however, said respondents stopped paying rentals claiming
ownership over the subject lot. Petitioners thus filed the complaint a quo. Sdaadsc

After trial, the lower court rendered judgment in favor of petitioners. The RTC found the
existence of tax declarations in the names of Hermogenes Olis and Pascual Olis (purported
owners of Lot Nos. 1639-A and 1639-B, respectively)[5] as indubitable proof that there was a
subdivision of Lot No. 1639. It likewise found that Tomas Maglucot, respondents predecessor-
in-interest, took active part in the partition as it was he, in fact, who commenced the action for
partition.[6] The court a quo cited Article 1431 of the Civil Code which states that "[t]hrough
estoppel an admission or representation is rendered conclusive upon the person making it, and
cannot be denied or disproved as against the person relying thereon." Applying said provision of
law, it held that while there was no court order showing that Lot No. 1639 was partitioned, its
absence could not be used by Tomas Maglucot, or respondents as his successors-in-interest, to
deny the existence of an approved partition against the other co-owners who claim that there
was one.[7]Said court, likewise, ruled that the tax declarations[8] over the houses of respondents,
expressly stating that the same are constructed on the lots of Roberto Maglucot, constitute a
conclusive admission by them of the ownership of the subject lot by the latter.[9]

The dispositive portion of the lower courts decision reads as follows: Missdaa

WHEREFORE, on the basis of the foregoing discussion, judgment is hereby

rendered in favor of the plaintiffs against the defendants ordering the latter:

1. To demolish their houses inside lot 1639-D, vacate the premises thereof and
deliver the possession of the same to Plaintiffs; Slxmis

2. To jointly and solidarily pay plaintiffs the sum of P15,000.00 for attorneys fees;
 3. To each pay plaintiffs the sum of P100.00 every year from 1993 for actual
damages representing the amount of unpaid rentals up to the time they actually
vacate the premises in question; Sclaw

4. To pay the costs.[10]

On appeal, the CA reversed the decision of the RTC. The appellate court ruled that the sketch
plan and tax declarations relied upon by petitioners are not conclusive evidence of partition.
[11]
 The CA likewise found that the prescribed procedure under Rule 69 of the Rules of Court
was not followed. It thus declared that there was no partition of Lot No. 1639. Slxsc

Petitioners filed this petition for review on certiorari alleging that the CA committed the following
reversible errors:

IN VIOLATING THE LAW ON ACQUISITIVE PRESCRIPTION PLAINTIFFS

HAVING POSSESSED LOT 1639-D SINCE 1946;

II

IN VIOLATING THE LAW ON ESTOPPEL; THE FACT OF PAYMENT OF

RENTALS AND OFFER TO BUY BY THE DEFENDANTS IS ADMISSION THAT
THE AREA IN LOT 1639-D, HAD LONG BEEN ADJUDICATED TO
PLAINTIFFS;

III

IN DECLARING THAT THERE WAS NO PRIOR PARTITION, CONTRARY TO

THE FINDINGS OF THE TRIAL COURT, AND AGAINST THE EVIDENCE ON
RECORD, OF WHICH IF PROPERLY CONSIDERED WOULD CHANGE THE
OUTCOME OF THE CASE;

IV

IN DECLARING THAT THERE IS NO LAW OR JURISPRUDENCE

APPLICABLE UNDER THE PREMISES; THIS WOULD ONLY SHOW THAT
THE RECORD OF THE CASE WAS NOT PROPERLY SCRUTINIZED, AND
THE LAW WAS NOT PROPERLY STUDIED; ESPECIALLY IN THE CASE AT
BENCH THAT THE ORAL AND MUTUAL PARTITION HAPPENED DURING
THE REGIME OF THE OLD RULES OF PROCEDURE;[12]

Petitioners maintain that Lot No. 1639 was mutually partitioned and physically subdivided
among the co-owners and that majority of them participated in the actual execution of the
subdivision. Further, the co-owners accepted their designated shares in 1946 as averred by
Tomas Maglucot in his petition for partition.[13] Petitioners opine that in 1952, Tomas Maglucot
himself initiated a court proceeding for a formal subdivision of Lot No. 1639. In said petition, he
averred that only Hermogenes Olis and the heirs of Pascual Olis were not agreeable to the
partition.[14] Petitioners further contend that respondents admitted in their tax declarations
covering their respective houses that they are "constructed on the land of Roberto
Maglucot."[15]Simply put, petitioners vigorously assert that respondents are estopped from
claiming to be co-owners of the subject lot in view of the mutual agreement in 1946, judicial
confirmation in 1952, and respondents acquiescence because they themselves exclusively
exercised ownership over Lot No. 1639-A beginning 1952 up to the present.[16]

For their part, respondents posit three points in support of their position. First, they emphasize
that petitioners failed to show that the interested parties were apprised or notified of the
tentative subdivision contained in the sketch and that the CFI subsequently confirmed the same.
[17]
 Second, they point to the fact that petitioners were unable to show any court approval of any
partition.[18] Third, they maintain that Lot No. 1639 remain undivided since to date, OCT No.
6275 is still an existing and perfectly valid title, containing no annotation of any encumbrance or
partition whatsoever.[19]

After a careful consideration of the pleadings filed by the parties and the evidence on record, we
find that the petition is meritorious. As stated earlier, the core issue in this case is whether there
was a valid partition in 1952. Scslx

Preliminarily, this Court recognizes that "the jurisdiction of this Court in cases brought before it
from the Court of Appeals via Rule 45 of the Rules of Court is limited to reviewing errors of law.
Findings of fact of the latter are conclusive, except in the following instances: (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 fact are
conflicting; (6) when in making its findings the Court of Appeals 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 those of 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 petitioners main and reply briefs are not disputed by the respondent;
and (10) when the findings of fact are premised on the supposed absence of evidence and
contradicted by the evidence on record."[20] This case falls under exceptions (7), (8) and (10) in
that the findings of facts of the CA are in conflict with that of the RTC, are mere conclusions
without citation of specific evidence on which they are based and are premised on absence of
evidence but are contradicted by the evidence on record. For these reasons, we shall consider
the evidence on record to determine whether indeed there was partition. Slx

In this jurisdiction, an action for partition is comprised of two phases: first, an order for partition
which determines whether a co-ownership in fact exists, and whether partition is proper; and,
second, a decision confirming the sketch or subdivision submitted by the parties or the
commissioners appointed by the court, as the case may be.[21] The first phase of a partition
and/or accounting suit is taken up with the determination of whether or not a co-ownership in
fact exists, (i.e., not otherwise legally proscribed) and may be made by voluntary agreement of
all the parties interested in the property. This phase may end with a declaration that plaintiff is
not entitled to have a partition either because a co-ownership does not exist, or partition is
legally prohibited. It may end, upon the other hand, with an adjudgment that a co-ownership
does in truth exist, partition is proper in the premises and an accounting of rents and profits
received by the defendant from the real estate in question is in order. In the latter case, the
parties may, if they are able to agree, make partition among themselves by proper instruments
of conveyance, and the court shall confirm the partition so agreed upon. In either case i.e.,
either the action is dismissed or partition and/or accounting is decreed the order is a final one,
and may be appealed by any party aggrieved thereby. The second phase commences when it
appears that "the parties are unable to agree upon the partition" directed by the court. In that
event, partition shall be done for the parties by the court with the assistance of not more than
three (3) commissioners. This second stage may well also deal with the rendition of the
accounting itself and its approval by the court after the parties have been accorded opportunity
to be heard thereon, and an award for the recovery by the party or parties thereto entitled of
their just share in the rents and profits of the real estate in question. Such an order is, to be
sure, final and appealable.[22]

The present rule on the question of finality and appealability of a decision or order decreeing
partition is that it is final and appealable.[23] The order of partition is a final determination of the
co-ownership over Lot No. 1639 by the parties and the propriety of the partition thereof. Hence,
if the present rule were applied, the order not having been appealed or questioned by any of the
parties to the case, it has become final and executory and cannot now be disturbed. Mesm

The true test to ascertain whether or not an order or a judgment is interlocutory or final is: Does
it leave something to be done in the trial court with respect to the merits of the case? If it does, it
is interlocutory; if it does not, it is final. The key test to what is interlocutory is when there is
something more to be done on the merits of the case.[24] An order for partition is final and not
interlocutory and, hence, appealable because it decides the rights of the parties upon the issue
submitted.[25]

However, this Court notes that the order of partition was issued when the ruling in Fuentebella
vs. Carrascoso,[26] which held that the order of partition is interlocutory, was controlling. In
addition, the reports of the commissioners not having been confirmed by the trial court are not
binding.[27] In this case, both the order of partition and the unconfirmed sketch plan are, thus,
interlocutory. Nevertheless, where parties do not object to the interlocutory decree, but show by
their conduct that they have assented thereto, they cannot thereafter question the decree,
[28]
 especially, where, by reason of their conduct, considerable expense has been incurred in the
execution of the commission.[29] Respondents in this case have occupied their respective lots in
accordance with the sketch/subdivision plan. They cannot after acquiescing to the order for
more than forty (40) years be allowed to question the binding effect thereof.

This case is to be distinguished from the order in the action for partition in Arcenas vs. Cinco.
[30]
 In that case, the order was clearly interlocutory since it required the parties " to submit the
corresponding deed of partition to the Court for its approval." Here, the order appointed two
commissioners and directed them merely to approve the sketch plan already existing and
tentatively followed by the parties. Calrky

Under the present rule, the proceedings of the commissioners without being confirmed by the
court are not binding upon the parties.[31] However, this rule does not apply in case where the
parties themselves actualized the supposedly unconfirmed sketch/subdivision plan. The
purpose of court approval is to give effect to the sketch/subdivision plan. In this case, the parties
themselves or through their predecessors-in-interest implemented the sketch plan made
pursuant to a court order for partition by actually occupying specific portions of Lot No. 1639 in
1952 and continue to do so until the present until this case was filed, clearly, the purpose of the
court approval has been met. This statement is not to be taken to mean that confirmation of the
commissioners may be dispensed with but only that the parties herein are estopped from raising
this question by their own acts of ratification of the supposedly non-binding sketch/subdivision
plan. Kycalr

The records of the case show that sometime in 1946 there was a prior oral agreement to
tentatively partition Lot No. 1639.[32] By virtue of this agreement, the original co-owners occupied
specific portions of Lot No. 1639.[33] It was only in 1952 when the petition to subdivide Lot No.
1639 was filed because two of the co-owners, namely Hermogenes Olis and heirs of Pascual
Olis, refused to have said lot subdivided and have separate certificates of title. Significantly,
after the 1952 proceedings, the parties in this case by themselves and/or through their
predecessors-in-interest occupied specific portions of Lot No. 1639 in accordance with the
sketch plan. Such possession remained so until this case arose, or about forty (40) years later.

From its order in 1952, it can be gleaned that the CFI took notice of the tentative subdivision
plan by oral partition of the parties therein. Further, it appears that said court was aware that the
parties therein actually took possession of the portions in accordance with the
sketch/subdivision plan. With this factual backdrop, said court ordered the partition and
appointed two (2) commissioners to approve the tentative sketch/subdivision plan. It would not
be unreasonable to presume that the parties therein, having occupied specific portions of Lot
No. 1639 in accordance with the sketch/subdivision plan, were aware that it was that same
sketch/subdivision plan which would be considered by the commissioners for approval. There is
no showing that respondents by themselves or through their predecessors-in-interest raised any
objections. On the contrary, the records show that the parties continued their possession of the
specific portions of Lot No. 1639 pursuant to the sketch/subdivision plan. Kyle

It has been previously held that a co-owner, who, though not a party to a partition accepts the
partition allotted to him, and holds and conveys the same in severalty, will not be subsequently
permitted to avoid partition.[34] It follows that a party to a partition is also barred from avoiding
partition when he has received and held a portion of the subdivided land especially in this case
where respondents have enjoyed ownership rights over their share for a long time.

Parties to a partition proceeding, who elected to take under partition, and who took possession
of the portion allotted to them, are estopped to question title to portion allotted to another party.
[35]
 A person cannot claim both under and against the same instrument.[36] In other words, they
accepted the lands awarded them by its provisions, and they cannot accept the decree in part,
and repudiate it in part. They must accept all or none.[37] Parties who had received the property
assigned to them are precluded from subsequently attacking its validity of any part of it.[38] Here,
respondents, by themselves and/or through their predecessors-in-interest, already occupied of
the lots in accordance with the sketch plan. This occupation continued until this action was filed.
They cannot now be heard to question the possession and ownership of the other co-owners
who took exclusive possession of Lot 1639-D also in accordance with the sketch plan. Exsm

In technical estoppel, the party to be estopped must knowingly have acted so as to mislead his
adversary, and the adversary must have placed reliance on the action and acted as he would
otherwise not have done. Some authorities, however, hold that what is tantamount to estoppel
may arise without this reliance on the part of the adversary, and this is called, ratification or
election by acceptance of benefits, which arises when a party, knowing that he is not bound by
a defective proceeding, and is free to repudiate it if he will, upon knowledge, and while under no
disability, chooses to adopt such defective proceeding as his own.[39] Ratification means that one
under no disability voluntarily adopts and gives sanction to some unauthorized act or defective
proceeding, which without his sanction would not be binding on him. It is this voluntary choice,
knowingly made, which amounts to a ratification of what was theretofore unauthorized, and
becomes the authorized act of the party so making the ratification.[40]

The records show that respondents were paying rent for the use of a portion of Lot No. 1639-D.
Had they been of the belief that they were co-owners of the entire Lot No. 1639 they would not
have paid rent. Respondents attempted to counter this point by presenting an uncorroborated
testimony of their sole witness to the effect that the amount so paid to Roberto Maglucot and,
subsequently, to Ruperta Salma were for the payment of real property taxes. We are not
persuaded. It is quite improbable that the parties would be unaware of the difference in their
treatment of their transactions for so long a time. Moreover, no evidence was ever presented to
show that a tax declaration for the entire Lot No. 1639 has ever been made. Replete in the
records are tax declarations for specific portions of Lot 1639. It is inconceivable that
respondents would not be aware of this. With due diligence on their part, they could have easily
verified this fact. This they did not do for a period spanning more than four decades.

The payment of rentals by respondents reveal that they are mere lessees. As such, the
possession of respondents over Lot No. 1639-D is that of a holder and not in the concept of an
owner. One who possesses as a mere holder acknowledges in another a superior right which
he believes to be ownership, whether his belief be right or wrong.[41] Since the possession of
respondents were found to be that of lessors of petitioners, it goes without saying that the latter
were in possession of Lot No. 1639-D in the concept of an owner from 1952 up to the time the
present action was commenced.Msesm

Partition may be inferred from circumstances sufficiently strong to support the presumption.
[42]
 Thus, after a long possession in severalty, a deed of partition may be presumed.[43] It has
been held that recitals in deeds, possession and occupation of land, improvements made
thereon for a long series of years, and acquiescence for 60 years, furnish sufficient evidence
that there was an actual partition of land either by deed or by proceedings in the probate court,
which had been lost and were not recorded.[44] And where a tract of land held in common has
been subdivided into lots, and one of the lots has long been known and called by the name of
one of the tenants in common, and there is no evidence of any subsequent claim of a tenancy in
common, it may fairly be inferred that there has been a partition and that such lot was set off to
him whose name it bears.[45]

Respondents insist that the absence of any annotation in the certificate of title showing any
partition of Lot No. 1639 and that OCT No. 6725 has not been canceled clearly indicate that no
partition took place. The logic of this argument is that unless partition is shown in the title of the
subject property, there can be no valid partition or that the annotation in the title is the sole
evidence of partition. Esmso

Again, we are not persuaded. The purpose of registration is to notify and protect the interests of
strangers to a given transaction, who may be ignorant thereof, but the non-registration of the
deed evidencing such transaction does not relieve the parties thereto of their obligations
thereunder.[46] As originally conceived, registration is merely a species of notice. The act of
registering a document is never necessary in order to give it legal effect as between the parties.
[47]
 Requirements for the recording of the instruments are designed to prevent frauds and to
permit and require the public to act with the presumption that recorded instruments exist and are
genuine.[48]
It must be noted that there was a prior oral partition in 1946. Although the oral agreement was
merely tentative, the facts subsequent thereto all point to the confirmation of said oral partition.
By virtue of that agreement, the parties took possession of specific portions of the subject lot.
The action for partition was instituted because some of the co-owners refused to have separate
titles issued in lieu of the original title. In 1952, an order for partition was issued by the cadastral
court. There is no evidence that there has been any change in the possession of the parties.
The only significant fact subsequent to the issuance of the order of partition in 1952 is that
respondents rented portions of Lot No. 1639-D. It would be safe to conclude, therefore, that the
oral partition as well as the order of partition in 1952 were the bases for the finding of actual
partition among the parties. The legal consequences of the order of partition in 1952 having
been discussed separately, we now deal with oral partition in 1946. Given that the oral partition
was initially tentative, the actual possession of specific portions of Lot No. 1639 in accordance
with the oral partition and the continuation of such possession for a very long period indicate the
permanency and ratification of such oral partition. The validity of an oral partition is already well-
settled. In Espina vs. Abaya,[49] we declared that an oral partition is valid. In Hernandez vs.
Andal,[50] reiterated in Tan vs. Lim,[51] this Court has ruled, thus:

On general principle, independent and in spite of the statute of frauds, courts of equity
have enforce oral partition when it has been completely or partly performed.

Regardless of whether a parol partition or agreement to partition is valid and

enforceable at law, equity will proper cases where the parol partition has actually been
consummated by the taking of possession in severalty and the exercise of ownership
by the parties of the respective portions set off to each, recognize and enforce such
parol partition and the rights of the parties thereunder. Thus, it has been held or stated
in a number of cases involving an oral partition under which the parties went into
possession, exercised acts of ownership, or otherwise partly performed the partition
agreement, that equity will confirm such partition and in a proper case decree title in
accordance with the possession in severalty.

In numerous cases it has been held or stated that parol partition may be sustained on
the ground of estoppel of the parties to assert the rights of a tenant in common as to
parts of land divided by parol partition as to which possession in severalty was taken
and acts of individual ownership were exercised. And a court of equity will recognize
the agreement and decree it to be valid and effectual for the purpose of concluding the
right of the parties as between each other to hold their respective parts in severalty.

A parol partition may also be sustained on the ground that the parties thereto have
acquiesced in and ratified the partition by taking possession in severalty, exercising
acts of ownership with respect thereto, or otherwise recognizing the existence of the
partition.

A number of cases have specifically applied the doctrine of part performance, or have
stated that a part performance is necessary, to take a parol partition out of the
operation of the statute of frauds. It has been held that where there was a partition in
fact between tenants in common, and a part performance, a court of equity would have
regard to enforce such partition agreed to by the parties.

Two more points have constrained this Court to rule against respondents. First, respondents
Wilfreda Maglucot-Alejo and Constancio Alejo offered to buy the share of Roberto Maglucot.
Second, the tax declarations contain statements that the houses of respondents were built on
the land owned by Roberto Maglucot. 

On the first point, petitioners presented Aida Maglucot who testified that after respondents were
informed that petitioners were going to use Lot No. 1639-D belonging to Roberto Maglucot,
respondents Wilfreda Maglucot-Alejo and Constancio Alejo went to the house of said witness
and offered to buy the share of Roberto Maglucot.[52] Aida Maglucot further testified that they
refused the offer because they also intend to use the lot for a residential purpose.[53] This
testimony of Aida Maglucot is unrebutted by respondents, and the CA did not touch upon this
finding of fact. Hence, the offer to buy has been established by the unrebutted evidence of the
petitioners. Why would they give such offer if they claim to be at least a co-owner of the said
lot? In effect, respondents impliedly admit the title of the petitioners and that they are not co-
owners, much less the sole owners, of Lot No. 1639-D.

On the second point, the existence of Tax Declaration No. 04-557 in the names of Constancio
Alejo and Godofreda Maglucot,[54] Tax Declaration No. 04-87-13 in the names of Leopoldo
Maglucot and Regina Barot,[55] Tax Declaration No. 04-593 in the names of Severo Maglucot
and Samni Posida[56]showing that the houses of the above-mentioned persons are constructed
on the land of Roberto Maglucot[57] constitute incontrovertible evidence of admission by the
same persons of the ownership of the land by Roberto Maglucot. Tax Declarations are public
documents. Unless their veracity is directly attacked, the contents therein are presumed to be
true and accurate.[58] The lone testimony of Severo Maglucot that Roberto Maglucot was only
made to appear as owner of the land in their respective declarations because he was the
administrator of Lot No. 1639 is uncorroborated and not supported by any other evidence. 

No injustice is dealt upon respondents because they are entitled to occupy a portion of Lot No.
1639, particularly Lot No. 1639-A, in their capacity as heirs of Tomas Maglucot, one of the
original co-owners of Lot No. 1639 in accordance with the sketch plan of said lot showing the
partition into six portions.[59]

Finally, this Court takes notice of the language utilized by counsel for petitioners in their petition
for review on certiorari. Thrice in the petition, counsel for petitioners made reference to the
researcher of the CA. First, he alluded to the lack of scrutiny of the records and lack of study of
the law "by the researcher."[60] Second, he cited the researcher of the CA as having "sweepingly
stated without reference to the record"[61] that "[w]e have scanned the records on hand and
found no evidence of any partition." Finally, counsel for petitioners assailed the CA decision,
stating that "this will only show that there was no proper study of the case by the researcher."[62]

Any court when it renders a decision does so as an arm of the justice system and as an
institution apart from the persons that comprise it. Decisions are rendered by the courts and not
the persons or personnel that may participate therein by virtue of their office. It is highly
improper and unethical for counsel for petitioners to berate the researcher in his appeal.
Counsel for petitioner should be reminded of the elementary rules of the legal profession
regarding respect for the courts by the use of proper language in its pleadings and admonished
for his improper references to the researcher of the CA in his petition. A lawyer shall abstain
from scandalous, offensive, or menacing language or behavior before the courts.[63]

WHEREFORE, the petition is GRANTED The decision of the Court of Appeals is SET ASIDE
and the decision of the Regional Trial Court is hereby REINSTATED. h Y
SO ORDERED.

Title III. - CO-OWNERSHIP

Art. 484. There is co-ownership whenever the ownership of an undivided thing or right belongs
to different persons.

In default of contracts, or of special provisions, co-ownership shall be governed by the

provisions of this Title. (392)

Art. 485. The share of the co-owners, in the benefits as well as in the charges, shall be
proportional to their respective interests. Any stipulation in a contract to the contrary shall be
void.

The portions belonging to the co-owners in the co-ownership shall be presumed equal, unless
the contrary is proved. (393a)

Art. 486. Each co-owner may use the thing owned in common, provided he does so in
accordance with the purpose for which it is intended and in such a way as not to injure the
interest of the co-ownership or prevent the other co-owners from using it according to their
rights. The purpose of the co-ownership may be changed by agreement, express or implied.
(394a)

Art. 487. Any one of the co-owners may bring an action in ejectment. (n)

Art. 488. Each co-owner shall have a right to compel the other co-owners to contribute to the
expenses of preservation of the thing or right owned in common and to the taxes. Any one of
the latter may exempt himself from this obligation by renouncing so much of his undivided
interest as may be equivalent to his share of the expenses and taxes. No such waiver shall be
made if it is prejudicial to the co-ownership. (395a)
Art. 489. Repairs for preservation may be made at the will of one of the co-owners, but he must,
if practicable, first notify his co-owners of the necessity for such repairs. Expenses to improve or
embellish the thing shall be decided upon by a majority as determined in Article 492. (n)

Art. 490. Whenever the different stories of a house belong to different owners, if the titles of
ownership do not specify the terms under which they should contribute to the necessary
expenses and there exists no agreement on the subject, the following rules shall be observed:

(1) The main and party walls, the roof and the other things used in common, shall be preserved
at the expense of all the owners in proportion to the value of the story belonging to each;

(2) Each owner shall bear the cost of maintaining the floor of his story; the floor of the entrance,
front door, common yard and sanitary works common to all, shall be maintained at the expense
of all the owners pro rata;

(3) The stairs from the entrance to the first story shall be maintained at the expense of all the
owners pro rata, with the exception of the owner of the ground floor; the stairs from the first to
the second story shall be preserved at the expense of all, except the owner of the ground floor
and the owner of the first story; and so on successively. (396)

Art. 491. None of the co-owners shall, without the consent of the others, make alterations in the
thing owned in common, even though benefits for all would result therefrom. However, if the
withholding of the consent by one or more of the co-owners is clearly prejudicial to the common
interest, the courts may afford adequate relief. (397a)

Art. 492. For the administration and better enjoyment of the thing owned in common, the
resolutions of the majority of the co-owners shall be binding.

There shall be no majority unless the resolution is approved by the co-owners who represent
the controlling interest in the object of the co-ownership.

Should there be no majority, or should the resolution of the majority be seriously prejudicial to
those interested in the property owned in common, the court, at the instance of an interested
party, shall order such measures as it may deem proper, including the appointment of an
administrator.

Whenever a part of the thing belongs exclusively to one of the co-owners, and the remainder is
owned in common, the preceding provision shall apply only to the part owned in common. (398)

Art. 493. Each co-owner shall have the full ownership of his part and of the fruits and benefits
pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute
another person in its enjoyment, except when personal rights are involved. But the effect of the
alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which
may be alloted to him in the division upon the termination of the co-ownership. (399)
Art. 494. No co-owner shall be obliged to remain in the co-ownership. Each co-owner may
demand at any time the partition of the thing owned in common, insofar as his share is
concerned.

Nevertheless, an agreement to keep the thing undivided for a certain period of time, not
exceeding ten years, shall be valid. This term may be extended by a new agreement.

A donor or testator may prohibit partition for a period which shall not exceed twenty years.

Neither shall there be any partition when it is prohibited by law.

No prescription shall run in favor of a co-owner or co-heir against his co-owners or co-heirs so
long as he expressly or impliedly recognizes the co-ownership. (400a)

Art. 495. Notwithstanding the provisions of the preceding article, the co-owners cannot demand
a physical division of the thing owned in common, when to do so would render it unserviceable
for the use for which it is intended. But the co-ownership may be terminated in accordance with
Article 498. (401a)

Art. 496. Partition may be made by agreement between the parties or by judicial proceedings.
Partition shall be governed by the Rules of Court insofar as they are consistent with this Code.
(402)

Art. 497. The creditors or assignees of the co-owners may take part in the division of the thing
owned in common and object to its being effected without their concurrence. But they cannot
impugn any partition already executed, unless there has been fraud, or in case it was made
notwithstanding a formal opposition presented to prevent it, without prejudice to the right of the
debtor or assignor to maintain its validity. (403)

Art. 498. Whenever the thing is essentially indivisible and the co-owners cannot agree that it be
allotted to one of them who shall indemnify the others, it shall be sold and its proceeds
distributed. (404)

Art. 499. The partition of a thing owned in common shall not prejudice third persons, who shall
retain the rights of mortgage, servitude or any other real rights belonging to them before the
division was made. Personal rights pertaining to third persons against the co-ownership shall
also remain in force, notwithstanding the partition. (405)

Art. 500. Upon partition, there shall be a mutual accounting for benefits received and
reimbursements for expenses made. Likewise, each co-owner shall pay for damages caused by
reason of his negligence or fraud. (n)

Art. 501. Every co-owner shall, after partition, be liable for defects of title and quality of the
portion assigned to each of the other co-owners. (n)