Republic of the Philippines

Court of Appeals
Manila

SPECIAL NINTH DIVISION

ADELAIDA CATINDOY, CA-G.R. SP No. 164889

Petitioner,
Members:

Ybañez, E.A., Chairperson

- versus - Santos, R.A.M., and
Pascua, B.S.,*JJ.:

AYALA-MANDALUYONG Promulgated:
HOMEOWNERS
ASSOCIATION INC. (AMHAI)
February 26, 2021
represented by MARCELITA K.
__________________
VALDES,
Respondent.
x==============================================x
DECISION

Santos, J.

Before this Court is a Petition for Review1 filed by petitioner

Adelaida Catindoy (petitioner) assailing the Decision2 dated 27
November 2019 of the Regional Trial Court, National Capital
Judicial Region, Branch 211, Mandaluyong City (RTC), which
affirmed the Decision3 dated 13 February 2018 of the Metropolitan
Trial Court, Branch 99, Mandaluyong City (MeTC) in Civil Case
No. 23857. The dispositive portion of the assailed Decision reads:

WHEREFORE, premises considered, the Decision dated

February 13, 2018 rendered by the Metropolitan Trial Court,
Branch 99, Mandaluyong City in Civil Case No. 23857 is hereby
AFFIRMED in toto.

SO ORDERED.4 (Emphasis and italics in the original)

* Acting Junior Member per Office Order No. 58-21-RSF dated 22 February 2021.
1 Rollo, pp. 5-23, sans Annexes.
2 Id., at 168-173, penned by Hon. Ofelia L. Calo.
3 Id., at 101-108, penned by Hon. Ruth S. Pasion-Ramos.
4 Id., at 172-173.
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The Antecedents

This case stemmed from a complaint for ejectment filed by

respondent Ayala-Mandaluyong Homeowners Association, Inc.
represented by Marcelita K. Valdes (respondent AMHAI) against
petitioner and Maria Tagayon (Tagayon) and all persons claiming
under them, docketed as Civil Case No. 23857.

The pertinent facts, as summarized by the RTC, are as

follows:
xxx

On December 12, 2016, plaintiff-appellee Ayala-

Mandaluyong Homeowners Association, Inc. (AMHAI, for
short), a non-stock, non-profit homeowners association
organized to provide maintenance, cleanliness, security and the
promotion of the general welfare of the homeowners of the
Ayala Homes, a residential subdivision located in Barangay
Barangka, Mandaluyong filed a complaint against defendants-
appellants Adelaida Catindoy and Maria Tagayon.

In said Complaint, plaintiff-appellee alleges that Ayala

Homes is the subdivision project initiated in 1976 as “Ayala
Companies 2nd Employees Housing Project" originally
developed by The Insular Life Assurance Company Ltd. And
Filipinas Life Assurance Co. (now known as BPI-PHILAM LIFE
ASSURANCE CORP.) Pursuant to law, The Insular Life
Assurance Company Ltd. and Filipinas Life Assurance Co.
reserved two (2) parcels of land as OPEN SPACES of the
subdivision, one located at Ilang-ilang St. covered by TCT No.
16174 with an area of 400 square meters while the other lot is
located at Hasmin corner Rosal Streets covered by TCT No.
008-15908 with an area of 400 square meters, both of the
Registry of Deeds, Mandaluyong City. These OPEN SPACES
have been formally turned over by the Insular Life Assurance
Company Ltd. and Filipinas Life Assurance Co. in favor of the
plaintiff through its respective Deed of Transfer, pursuant to
the Board Resolution and Secretary's Certificate.

Plaintiff further states that defendants and their

predecessors occupied the open spaces located at Ilang-Ilang St.
 CA-G.R. SP No. 164889
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as caretaker of the deepwell installed on the open spaces for the

benefit of the nearby sugar refinery. Despite the cessation of the
operations of said well, defendants continued to occupy the
open spaces over the years under the tolerance of the AMHAI
for humanitarian consideration with the understanding that
they will have to vacate once AMHAI would be in need of the
same for the purpose for which the open spaces were reserved
pursuant to law. Their dwellings are merely makeshifts and
made of very light materials. Also, it has been observed by the
AMHAI administration that some new occupants are coming in
surreptitiously and the occupants had been cited for
misdemeanors and other misbehaviors and have become often
the cause [of] some troubles within the neighborhood.

Plaintiffs have intimated to defendants their need of the

open space to develop for the benefit of the homeowners.
Several demands had been conveyed to the defendants to
vacate the property and on October 4, 2016, the matter was
brought before the Office of Barangay Barangka Drive.
However no settlement was reached by AMHAI and the
defendants. On November 14, 2016, a formal demand letter was
sent to the defendants. Notwithstanding demands, defendants
still hold on to the property and refused and still refuses (sic) to
vacate the property. Thus the filing of the instant action with
prayer for the defendants to vacate the subject property located
at #2 Hasmin corner Rosal Streets, Ayala Homes and to pay the
plaintiff the reasonable compensation for the use of the
property; P45,000.00 as attorney's fees; and P2,500.00
appearance fee.

In her Answer, defendant Adelaida Catindoy does not

deny that she and her family are occupying the land subject of
the instant case since 1953. Defendant's stepfather, Mariano De
Jesus was employed in INSUREFCO from 1953 until 1962 while
her husband, Arturo Catindoy worked from 1969 until its
closure in 1984. Insular Sugar Refinery (INSUREFCO) owned
two deep wells. As employees of INSUREFCO, defendants
were allowed to build their respective residences in the open
space near the deepwell. In 1983, INSUREFCO authorized the
defendant's mother, Marciano Tagayon, to act as caretaker of
one of the deep wells. Such authorization was never revoked
until the closure of the company. INSUREFCO was later
acquired by Noah's Ark Sugar Refinery (NASR). Prior to said
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purchase until the closure of NASR in 1997, defendant

continuously lived in the same vicinity. Since 1956, defendant's
possession of the property has never been disturbed.

Defendant further deny that their possession was by

mere tolerance by the plaintiff since it was not privy to the
original agreement between the defendants and INSUREFCO.
Their possession of the second deepwell did not expire
regardless of the plaintiff's demand to vacate. Defendants are
staying at the property not merely because their family
members were employed by INSUREFCO but due to the fact
that they are assigned as the caretakers of the same.

She also contends that the instant case should be

dismissed for lack of jurisdiction since the elements of unlawful
detainer are not present. While plaintiff believes that the
defendant's right to possess ceased when the company closed,
yet it was only on November 7, 2016 over nineteen (19) years
that plaintiff sent out the “final demand to vacate.” That even
assuming that the elements of unlawful detainer are present,
the instant case should be dismissed since the plaintiff is not
the registered owner of the open spaces. That while plaintiff
claimed that the open spaces were validly turned over to them
by virtue of a Deed of Transfer, TCT Nos. 15908 and 16174 are
still in the name of Insular Life Assurance Company, Ltd.

In the Answer filed by defendant Maria Tagayon, she

denied the material allegations in the complaint. She admitted
that it is through her husband, Reynaldo N. Tagayon, former
employee of INSUREFCO that she acquired the beneficial right
to use the property. By way of special and affirmative defense,
she states that her family have complied with the terms of their
beneficial right to use the property. They have served as
caretakers of the said land and have made improvements
contrary to the assertions of the plaintiff. Defendant further
alleges that plaintiff has no cause of action as the case was filed
without authority from the board of directors of the plaintiff.
Defendant maintains that she has the better right of possession
having occupied the property even before the incorporation
and constitution of Ayala Subdivision.

xxx5
5 Id., at 168-170.
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On 13 February 2018, the MeTC rendered its Decision6 which

ordered petitioner and Tagayon as well as all persons claiming
rights of possession under them to vacate the portion of the
subject property and to deliver the possession to respondent and
to pay monthly rental in the amount of P5,000.00 from 14
November 2016 until they actually vacate the same.

On appeal to the RTC, the RTC rendered the assailed

Decision affirming the Decision dated 13 February 2018 rendered
by the MeTC.

Aggrieved, petitioner and Tagayon filed a Motion for

Reconsideration7 seeking to reverse the assailed Decision, but the
same was denied by the RTC in its Order8 dated 20 February 2020.

Hence, the instant Petition for Review.

On 15 July 2020, this Court issued a Resolution9 which,

among others, directed respondent AMHAI to file its Comment
within ten (10) days from notice, and petitioner to file her Reply
thereto within five (5) days.

On 24 August 2020, petitioner filed her Compliance10 dated 21

August 2020.

On 17 December 2020, this Court issued a Resolution11

requiring respondent AMHAI's counsel to show cause why the
instant Petition for Review should not be deemed submitted for
decision sans comment.

On 13 January 2021, respondent AMHAI filed a Compliance

with Motion to Admit Respondents' Comment/Opposition to

6 Supra, note 3.
7 Id., at 174-176.
8 Id., at 183-187.
9 Id., at 202.
10 Id., at 203-204.
11 Id., at 205.
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Petitioner's Petition for Review with Apology12 with attached

Respondents' Comment/Vehement Opposition to Petitioner's Petition
for Review dated 29 March 202013 both dated 12 January 2021.

This Court grants respondent AMHAI's Compliance with

Motion to Admit Respondents' Comment/Opposition to Petitioner's
Petition for Review with Apology and notes Respondents'
Comment/Vehement Opposition to Petitioner's Petition for Review
dated 29 March 2020.

Thus, this case now submitted for decision.

Assignment of Errors/Issues

Petitioner submits the following issues for the Court's

resolution:

1. THE APPELLATE REGIONAL TRIAL COURT AS

PER ITS DECISION DATED NOVEMBER 27, 2019
SERIOUSLY AND GRAVELY ERRED IN AFFIRMING THE
EARLIER DECISION DATED 13 FEBRUARY 2018 OF THE
TRIAL COURT A QUO CONSIDERING THAT IT HAS NO
JURISDICTION OVER THE SUBJECT MATTER OF THE
CONTROVERSY SINCE THE ALLEGATIONS
CONTAINED IN THE COMPLAINT ITSELF FAILS TO
AVER FACTS CONSTITUTIVE OF FORCIBLE ENTRY OR
UNLAWFUL DETAINER AND/OR CANNOT MAKE OUR
UNLAWFUL DETAINER [sic] AND/OR CANNOT MAKE
OUT A SUMMARY CASE FOR EJECTMENT BUT FOR
RECOVERY OF POSSESSION PROPERLY COGNIZABLE
BY THE REGIONAL TRIAL COURT AND NOT THE
METROPOLITAN TRIAL COURT;

2. THE TRIAL COURT A QUO AS AFFIRMED BY

THE APPELLATE REGIONAL TRIAL COURT SERIOUSLY
AND GRAVELY ERRED IN HOLDING THAT
RESPONDENT HAS CAUSE OF ACTION AGAINST THE
HEREIN PETITIONER AND IN FURTHER HOLDING
THAT THEIR STAY AND OCCUPATION ON THE

12 Id., at 206-208.
13 Id., at 209-218.
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PROPERTY IN QUESTION BY MERE TOLERANCE;

3. THE TRIAL COURT A QUO AS AFFIRMED BY

THE APPELLATE REGIONAL TRIAL COURT SERIOUSLY
AND GRAVELY ERRED IN ORDERING PETITIONERS TO
PAY RESPONDENTS THE AMOUNT OF P5,000.00 PER
MONTH FROM DATE OF THE LAST DEMAND TO
VACATE, NOVEMBER 14, 2016, UNTIL COMPLETELY
VACATED AND FULLY SURRENDERED AS ACTUAL
DAMAGES FOR THE USE AND OCCUPANCY OF THE
SUBJECT PROPERTY;

4. THE TRIAL COURT A QUO AS AFFIRMED BY

THE APPELLATE REGIONAL TRIAL COURT SERIOUSLY
AND GRAVELY ERRED IN ORDERING PETITIONER TO
PAY THE COSTS OF SUIT; AND

5. THE TRIAL COURT A QUO AS AFFIRMED BY

THE APPELLATE REGIONAL TRIAL COURT SERIOUSLY
AND GRAVE[L]Y ERRED IN NOT AWARDING
PETITIONER OF MORAL AND EXEMPLARY DAMAGES
AND ATTORNEY'S FEES.14 (Emphasis in the original)

This Court's Ruling

In her Petition, petitioner primarily contends that the MeTC

had no jurisdiction over the subject matter of the instant case as
the Complaint allegedly failed to aver facts constitutive of an
action for unlawful detainer or forcible entry.15 Petitioner asserts
that there was no allegation in the Complaint that respondent has
been in actual and prior actual possession of the subject property
to warrant a case for forcible entry 16 nor of any allegation that her
occupation of the subject property was by mere tolerance of
respondent to warrant a case for unlawful detainer, 17 claiming
that the instant case is not one of ejectment, but of recovery of
possession properly cognizable by the trial court.18 Petitioner
claims actual and prior physical possession of the subject
14 Id., at 12-13.
15 Id., at 14.
16 Ibid.
17 Id., at 17.
18 Ibid.
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property long before respondent AMHAI came into existence and

claims to have acquired ownership thereof upon her purchase of
the subject property from its owner.19

The Court will address first the issue on jurisdiction. There

are three kinds of actions available to recover possession of real
property, namely:

1. Accion interdictal or a summary ejectment proceeding,

which may be either for forcible entry (detentacion) or unlawful
detainer (desahucio), for the recovery of physical or material
possession (possession de facto) where the dispossession has not
lasted for more than one year, and should be brought in the
proper inferior court;

2. Accion publiciana or the plenary action to recover the

better right of possession (possession de jure), which should be
brought in the proper inferior court or Regional Trial Court
(depending upon the value of the property) when the
dispossession has lasted for more than one year or for less than
a year in cases other than those mentioned in Rule 70 of the
Rules of Court); and

3. Accion reivindicatoria or accion de reivindicacion or

reivindicatory action, which is an action for recovery of
ownership which must be brought in the proper inferior court
or Regional Trial Court (depending upon the value of the
property).

xxx20 (Italics in the original)

It is an elementary principle of civil law that the owner of

real property is entitled to the possession thereof as an attribute of
his or her ownership. This notwithstanding, "the owner cannot
simply wrest possession thereof from whoever is in actual
occupation of the property." Rather, to recover possession, the
owner must first resort to the proper judicial remedy, and

19 Id., at 17-18.
20 Heirs of Cullado v. Gutierrez, G.R. No. 212938, 30 July 2019.
 CA-G.R. SP No. 164889
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thereafter, satisfy all the conditions necessary for such action to

prosper.21

In the instant case, respondent AMHAI, claiming to be the

owner of the subject property, elected to file a complaint for
ejectment, particularly for unlawful detainer, against the present
occupant of the subject property, containing the following
allegations:

1) The developer of the subdivision now

known as Ayala Homes reserved pursuant to law two
(2) parcels of land, herein subject of the instant
Complaint, as open spaces of the subdivision (the
“subject property”);22

The subject property had long been under

2)
the administration of respondent AMHAI as the
homeowners association of Ayala Homes, and that
said lots were eventually formally turned over to
respondent by the developer through a Deed of
Transfer executed on 7 February 2013;23

3)There used to be a water deepwell on the

subject property installed for a nearby sugar refinery
that had already ceased operations24 and petitioner
occupied the open space at Ilang-Ilang Street covered
by Transfer Certificate of Title (TCT) No. 008-15908,
with an area of four hundred (400) square metres,
more or less, as caretaker of said deepwell;25

Despite cessation of operations of the

4)
deepwell, petitioner continued to occupy the same
under the tolerance of the respondent AMHAI for
21 Javelosa v. Tapus, G.R. No. 204361, 4 July 2018.
22 Rollo, p. 26.
23 Ibid.
24 Ibid.
25 Id., at 26-27.
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humanitarian considerations, with the understanding

that petitioner will vacate the premises once
respondent AMHAI would be in need of the same for
the purpose for which the open spaces were reserved
pursuant to law;26

5) Respondent AMHAI had made several

demands to petitioner to vacate the subject property,
even bringing the matter for resolution of the office of
Barangay Barangka Drive,27 and when no settlement
was reached in the barangay, respondent AMHAI sent
petitioner a formal demand letter dated 7 November
2016 on 14 November 2016;28 and

6) When petitioner did not heed respondent

AMHAI's demand to vacate the property, respondent
AMHAI was constrained to institute the instant action
for ejectment.29

In choosing to file an an unlawful detainer suit respondent

AMHAI bore the correlative burden to sufficiently allege, and
thereafter prove by a preponderance of evidence all the
jurisdictional facts in this type of action. 30 Thus, respondent
AMHAI was charged with proving the following jurisdictional
facts:

initially, possession of property by the

(1)
defendant was by contract with or by tolerance of
the plaintiff;

eventually, such possession became

(2)
illegal upon notice by plaintiff to defendant of the
termination of the latter's right of possession;
26 Id., at 26.
27 Id., at 27.
28 Ibid.
29 Ibid.
30 Supra, note 21.
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(3) thereafter, the defendant remained in

possession of the property and deprived the
plaintiff of the enjoyment thereof; and

(4) within one year from the last demand on

defendant to vacate the property, the plaintiff
instituted the complaint for ejectment.

xxx31

Applying the foregoing, this Court finds that the material

allegations in the Complaint are sufficient to make out a case for
unlawful detainer necessary to confer jurisdiction over the subject
matter to the MeTC. However, respondent's entitlement to the
relief demanded is another matter, as it is a basic rule in civil
cases that whoever alleges a fact bears the burden of proving such
allegation.32 After all, the basic rule is that mere allegation is not
evidence and is not equivalent to proof. 33 We then proceed to
determine whether or not the cause of action for unlawful
detainer has been sufficiently proven by respondent AMHAI.

This Court rules in the negative.

In an action for unlawful detainer, the possession must have

been originally lawful, but turned unlawful only upon the
expiration of the right to possess. To show that the possession was
initially lawful, the basis of such possession must be established.
If the claim is that such possession is by mere tolerance of the
plaintiff, the acts of tolerance must be proved.34

31 Ibid.
32 BP Oil and Chemicals International Philippines, Inc. v. Total Distribution & Logistics Systems,
Inc., G.R. No. 214406, 6 February 2017.
33 Supra, note 21.
34 Ibid.
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In Javelosa v. Tapus,35 the Supreme Court underscored the

importance of proving the fact of tolerance, which should have
been present from the beginning of possession – from entry to the
property, thus:

Remarkably, in Quijano v. Atty. Amante, the Court ruled

that in an action for unlawful detainer, the plaintiff must show
that the possession was initially lawful, and thereafter,
establish the basis of such lawful possession. Similarly, should
the plaintiff claim that the respondent's possession was by
his/her tolerance, then such acts of tolerance must be proved.
A bare allegation of tolerance will not suffice. At least, the
plaintiff must point to the overt acts indicative of his/her or
predecessor's permission to occupy the disputed property.
Failing in this regard, the occupant's possession could then
be deemed to have been illegal from the beginning.
Consequently, the action for unlawful detainer will fail.
Neither may the ejectment suit be treated as one for forcible
entry in the absence of averments that the entry in the property
had been effected through force, intimidation, threats, strategy
or stealth.

Similarly, in Suarez v. Sps. Emboy, the Court warned that

"when the complaint fails to aver the facts constitutive of
forcible entry or unlawful detainer, as where it does not state
how entry was effected or how and when dispossession
started, the remedy should either be an accion publiciana or
accion reivindicatoria."

The same ruling was rendered in the case of Dr.

Carbonilla v. Abiera, et al., where the Court laid the important
dictum that the supposed acts of tolerance should have been
present right from the very start of the possession-from entry
to the property. "Otherwise, if the possession was unlawful
from the start, an action for unlawful detainer would be an
improper remedy." This same ruling was echoed in Jose v.
Alfuerto, et al., where the Court even emphasized its consistent
and strict holding that in an unlawful detainer case, "tolerance
or permission must have been present at the beginning of
possession; if the possession was unlawful from the start, an

35 Ibid.
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action for unlawful detainer would not be the proper remedy

and should be dismissed."

Perforce, guided by all the foregoing cases, an action

for unlawful detainer fails in the absence of proof of
tolerance, coupled with evidence of how the entry of the
respondents was effected, or how and when the
dispossession started. This rule is so stringent such that the
Court categorically declared in Go, Jr. v. CA that tolerance
cannot be presumed from the owner's failure to eject the
occupants from the land. Rather, "tolerance always carries
with it 'permission' and not merely silence or inaction for
silence or inaction is negligence, not tolerance." On this score,
the petitioner's tenacious claim that the fact of tolerance may be
surmised from her refusal for many years to file an action to
evict the respondents is obviously flawed.

xxx (Emphasis supplied, italics in the original, and

citations omitted)

It bears emphasis that bare allegation of tolerance will not

suffice as respondent AMHAI must at least show overt acts
indicative of its or its predecessor's permission to occupy the
subject property.36 Tolerance cannot be presumed from failure to
eject occupants of the property.37 Moreover, it must be sufficiently
proven that the supposed acts of tolerance was present at the
beginning of possession of the property. 38 Absent proof of
tolerance and how entry was effected or how and when
dispossession started, the action for unlawful detainer against
petitioner must necessarily fail.

Upon careful evaluation of the record, this Court finds that

respondent failed to adduce evidence to establish that petitioner's
occupation of the subject property was effected through
respondent AMHAI's tolerance, within the contemplation of an
unlawful detainer suit.

36 Nabo v. Buenviaje, G.R. No. 224906, 7 October 2020.

37 Supra, note 21.
38 Jose v. Alfuerto, et al., G.R. No. 169380, 26 November 2012.
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Respondent AMHAI admits in its Complaint that petitioner

has been in open and continuous possession of the subject
property as caretaker of the deepwell installed by a nearby sugar
property which has since stopped operating and claims that the
latter's possession over the years was through its tolerance, to wit:

xxx

VI

There used to be a water deepwell on the open spaces

installed for a nearby sugar refinary that had since stopped
operating for so many years now. Herein defendants and their
predecessors occupied the said open space located at Ilang-
ilang Street as caretaker of the deepwell. However, despite the
cessation of operations of the said well, they have continued to
occupy the same over the years under the tolerance of the
AMHAI for humanitarian considerations, with understanding
that they will have to vacate once the AMHAI would be in
need of the same for the purpose for which the open spaces
were reserved pursuant to law.

xxx39

The sugar refinery referred to by respondent AMHAI is

Insular Sugar Refinery (INSUREFCO), which according to
petitioner allowed her family to build their residence in the open
spaces near the deepwell as caretaker of said deepwell.40 When
INSUREFCO was acquired by Noah's Ark Sugar Reinery (NASR),
and even after NASR's closure in 1997, petitioner continued to
stay in the subject property.41 Petitioner alleges that as a matter of
fact, her possession of said subject property has not been
disturbed since 1956.42 Notably, respondent AMHAI did not
dispute these claims and in fact alleged in the Complaint that the
39 Rollo, p. 26.
40 Answer, Id., at 52; See also Exhibit “4” of petitioner's Position Paper, letter dated 30
August 1983 issued by Oscar A. De Guia of INSUREFCO, granting beneficial right to
petitioner's husband Arturo Catindoy to use and enjoy company property (lot/water
pumping station), Id., at 89.
41 Id., at 52.
42 Ibid.
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subdivision project which later on became Ayala Homes was

initiated only in 1976.43 The open spaces, including the subject
property, was formally turned over to respondent in 2013.44 Thus,
it is undisputed that petitioner's possession of the subject
property pre-dates respondent AMHAI's acquisition of
ownership of the subject property. Accordingly, it is also
undisputed that petitioner's entry into possession of the subject
property was not by virtue respondent AMHAI's permission.

In ruling to grant respondent's AMHAI's unlawful detainer

suit, the MeTC held that the rights of petitioner's predecessors-in-
interests were given up to respondent AMHAI in view of the
Deed of Transfer45 executed in the latter's favor by BPI-PHILAM
Life Assurance Corp. (BPI-PHILAM) , and on the basis of which
respondent AMHAI now has the right to eject petitioner.46 The
MeTC Decision dated 13 February 2018 stated:

The Defendants cannot stubbornly insist on their

claimed right to possession on the subject property anchored
on the supposed right given to them by their predecessors
when the latter's own rights were given up to the Plaintiff.
Considering the clear import of the Deed of Transfer in favor of
the Plaintiff, the latter's right to eject the Defendant is duly
established.

xxx47

The RTC echoed the MeTC's disposition stating that

petitioner, having admitted that her occupation of the subject
property is derived from her right to possess the same as
caretaker of the property granted by its previous owner, her right
to possess was withdrawn with the subsequent transfer of the
subject property to respondent AMHAI and upon respondent
AMHAI's demand for petitioner to vacate the subject property.48
43 Id., at 26.
44 Annex "F" of Petition for Review, Id., at 40-41.
45 Ibid.
46 Id., at 107.
47 Ibid.
48 Id., at 172.
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While the Court agrees that respondent AMHAI, as the new

owner of the subject property by virtue of the Deed of Transfer, has
the right to possess the subject property, under the circumstances
of the case, it cannot wrest possession from petitioner through a
summary action for unlawful detainer.

The MeTC's conclusion is based on the erroneous premise

and misinterpretation of the factual backdrop of this case. To
recapitulate, the Deed of Transfer over the subject property was
executed between the developer of the subdivision BPI-PHILAM
and respondent AMHAI as the homeowners association of Ayala
Homes subdivision. Nowhere in the Complaint, or in any of
respondent AMHAI's pleadings, was it averred or implied that
there was a relationship or privity of contract between BPI-
PHILAM and INSUREFCO, or between INSUREFCO and
respondent AMHAI. Thus, it was erroneous for the MeTC to
conclude, much more base respondent AMHAI's right to eject
petitioner, through an unlawful detainer suit premised on
petitioner's possession by tolerance, on the basis of the Deed of
Transfer between BPI-PHILAM and respondent AMHAI. This is
because petitioner's entry into possession of the subject property
is derived from the permission conferred to it by INSUREFCO as
caretaker of the deepwell, and absent any link between
INSUREFCO and BPI-PHILAM and proof that the latter or
respondent AMHAI granted permission to petitioner to occupy
the subject property, it cannot be said that the permission was
granted or any acts of tolerance was exercised by respondent
AMHAI and its predecessors. Had the action been one for
recovery of possession or accion reinvindicatoria, the Deed of
Transfer would have been relevant. However, since respondent
AMHAI opted to file an unlawful detainer suit grounded on
possession by tolerance, the concomitant burden of satisfying the
requisites of such action falls upon it to warrant the relief
demanded.

As stated earlier, petitioner had been occupying the subject

property long before respondent AMHAI acquired ownership
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over the subject property or came into existence. The permission

to stay in said property was given to petitioner as caretaker of the
deepwell, not by respondent AMHAI, but by INSUREFCO. The
record also shows that INSUREFCO and its successor company
NASR had ceased operation sometime in 1997. Following the
closure of NASR, it can be surmised that the permission granted
to petitioner to stay in the subject property by
INSUREFCO/NASR had also effectively ceased, even assuming
that NASR also granted permission to petitioner to occupy the
property. It must be noted that even after NASR's closure in 1997,
petitioner continued to occupy the subject property until
respondent AMHAI made its demand sometime in 2016. Thus,
there is no showing that petitioner's occupation of the subject
property after NASR's closure was lawful, or upon the permission
of respondent AMHAI and all its predecessors as to satisfy the
requirement of an unlawful detainer suit grounded on tolerance
of petitioner's occupation of the subject property.

This Court finds that the record is bereft of proof that

respondent AMHAI granted permission or exercised acts of
tolerance to allow petitioner to stay in the subject property from
the time of NASR's closure in 1997 or even when the subject
property was formally turned over to respondent through a Deed
of Transfer in 2013. Respondent AMHAI is conspicuously silent
about the details on how and when it allowed petitioner to stay in
the subject property to establish the circumstances of its grant of
tolerance from the start of petitioner's occupation of the subject
property.

It bears stressing that it is essential in an unlawful detainer

case that the occupation is initially legal, but only became illegal
upon expiration or termination of the right to possess the subject
property.49 Moreover, the complaint alleging tolerance must
definitely establish its existence from the start of possession –
from entry to property.50 With the cessation of the deepwell's

49 Eversley Childs Sanitarium v. Spouses Barbarona, G.R. No. 195814, 4 April 2018.
50 Ibid.
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operation, the permission granted to petitioner by

INSUREFCO/NASR was effectively withdrawn, and without
permission or tolerance shown by respondent AMHAI at the time
the subject property was placed under its administration or was
formally turned over to it, petitioner's possession of the subject
property was unlawful from the beginning in so far as
respondent AMHAI is concerned, which removes the instant
case within the purview of an action for unlawful detainer.

The averments in the Complaint and the evidence adduced

by respondent AMHAI are clearly wanting on these material
points: after 1997, who granted petitioner permission to stay in
the subject property?; if petitioner's occupation was by tolerance,
what were the overt acts indicative of tolerance exercised by
respondent AMHAI?; and, when was such tolerance, if any,
granted or exercised? These questions remain unanswered.
Without essential details and proof of how and when tolerance
came about, the bare claim regarding “tolerance” cannot be
upheld.

This Court is guided by the Supreme Court's

pronouncement in Padre v. Malabanan,51 cited in the case of Jose v.
Alfuerto, et al.,52 to wit:

In Padre v. Malabanan, the Court not only required

allegations regarding the grant of permission, but proof as
well. It noted that the plaintiffs alleged the existence of
tolerance, but ordered the dismissal of the unlawful detainer
case because the evidence was "totally wanting as to when
and under what circumstances xxx the alleged tolerance came
about." It stated that:

xxx

As early as the 1960s, in Sarona, et al. v. Villegas, et al., we

already ruled that a complaint which fails to positively aver
any overt act on the plaintiff’s part indicative of permission

51 532 Phil. 714, 721 (2006).

52 Supra, note 38.
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to occupy the land, or any showing of such fact during the

trial is fatal for a case for unlawful detainer. As the Court then
explained, a case for unlawful detainer alleging tolerance must
definitely establish its existence from the start of possession;
otherwise, a case for forcible entry can mask itself as an action
for unlawful detainer and permit it to be filed beyond the
required one-year prescription period from the time of forcible
entry:

A close assessment of the law and the concept

of the word "tolerance" confirms our view heretofore
expressed that such tolerance must be present right
from the start of possession sought to be recovered,
to categorize a cause of action as one of unlawful
detainer — not of forcible entry.

xxx (Emphasis supplied and italics in the original)

It cannot be overemphasized that in an action for unlawful

detainer, the permission or tolerance by the plaintiff of the
defendant's occupation of the property must have been present at
the beginning of the latter's possession of said subject property. 53
Otherwise, if the possession was unlawful from the start, as in the
instant case, an action for unlawful detainer would be an
improper remedy. Neither can this Court treat the instant action
for forcible entry in the absence of averment that the entry to the
property had been effected through force, intimidation, stealth or
strategy.54 Respondent AMHAI, however, may pursue recovering
possession of its property by filing an accion publiciana, which is a
plenary action intended to recover the better right to possess; or
an accion reivindicatoria, a suit to recover ownership of real
property.55

This Court need not belabor on the issue of ownership of the

subject property raised by petitioner. While it is true that in
ejectment cases, the lower courts and the Court of Appeals have
the competence to provisionally resolve the issue of ownership
53 Bugayong-Santiago v. Bugayong, G.R. No. 220389, 6 December 2017.
54 Ibid.
55 Supra, note 38.
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for the sole of purpose of determining the issue of possession

where the issue of ownership is inseparably linked to the issue of
possession, possession of the subject property in the instant case
is determined to remain with respondent in view of the factual
backdrop of the instant case. In Pajuyo v. Court of Appeals,56 the
Supreme Court held:

Ownership or the right to possess arising from

ownership is not at issue in an action for recovery of
possession. The parties cannot present evidence to prove
ownership or right to legal possession except to prove the
nature of the possession when necessary to resolve the issue of
physical possession. The same is true when the defendant
asserts the absence of title over the property. The absence of
title over the contested lot is not a ground for the courts to
withhold relief from the parties in an ejectment case.

The only question that the courts must resolve in

ejectment proceedings is - who is entitled to the physical
possession of the premises, that is, to the possession de facto
and not to the possession de jure. It does not even matter if a
party’s title to the property is questionable, or when both
parties intruded into public land and their applications to own
the land have yet to be approved by the proper government
agency. Regardless of the actual condition of the title to the
property, the party in peaceable quiet possession shall not be
thrown out by a strong hand, violence or terror. Neither is the
unlawful withholding of property allowed. Courts will always
uphold respect for prior possession.

Thus, a party who can prove prior possession can

recover such possession even against the owner himself.
Whatever may be the character of his possession, if he has in
his favor prior possession in time, he has the security that
entitles him to remain on the property until a person with a
better right lawfully ejects him. To repeat, the only issue that
the court has to settle in an ejectment suit is the right to
physical possession.

xxx (Emphasis supplied and italics in the original)

56 G.R. No. 146364, 3 June 2004.

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This Court, however, emphasizes the established rule that a

judgment in an ejectment case will not bar an action between the
same parties respecting title or ownership because between a case
for forcible entry or unlawful detainer and an accion
reivindicatoria, there is no identity of causes of action.57

The Supreme Court has consistently reminded parties that a

ruling dismissing ejectment cases does not mean that it favors the
occupant of the subject property over the person claiming a right
of ownership by virtue of a title, but rather, it merely emphasizes
the important fact that even a legal owner of the property cannot
simply oust a party who is in peaceable quiet possession thereof
through a summary action for ejectment, without having
established by preponderance of evidence the essential requisites
of the action.58 In an unlawful detainer case, the owner of a
property should prove that the possession of the occupant is
premised on his permission or tolerance, and failure in which, the
owner could pursue other appropriate legal remedies granted to
him by law.59

Anent's petitioner's claim for moral damages, this Court

resolves to deny the same absent any proof that respondent acted
maliciously or in bad faith in filing the instant Complaint.60 Moral
damages are awarded to enable the injured party to obtain means,
diversions, or amusements that will serve to alleviate the moral
suffering he has undergone, by reason of the defendant's culpable
action.61 For a claim for moral damages to prosper, the claimant
must prove that: (1) first, there must be an injury, whether
physical, mental or psychological, clearly sustained by the
claimant; (2) second, there must be culpable act or omission
factually established; (3) third, the wrongful act or omission of the
defendant is the proximate cause of the injury sustained by the
claimant; and (4) fourth, the award of damages is predicated on
57 De Guzman-Fuerte, v. Spouses Estomo, G.R. No. 223399, 23 April 2018.
58 Supra, note 36.
59 Ibid.
60 Francel Realty Corporation v. Court of Appeals, G.R. No. 117051, 22 January 1996.
61 Santos-Yllana Realty Corporation v. Spouses Deang, G.R. No. 190043, 21 June 2017.
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any of the cases stated in Article 2219 of the Civil Code. 62 This
Court finds that petitioner failed to factually establish a culpable
act by respondent AMHAI in filing the instant Complaint to
warrant the grant of such award.

Considering this Court's finding that petitioner is not

entitled to moral damages, the prayer for exemplary damages is
likewise denied pursuant to Articles 2229 and 2234 of the Civil
Code which hold that exemplary damages may be awarded only
in addition to moral, temperate, liquidated or compensatory
damages.63

As to attorney's fees, this Court finds that the same is not

warranted under the circumstances following the general rule
that such fees cannot be recovered by a successful litigant as part
of the damages awarded to be assessed against the losing party
because of the policy that no premium should be placed on the
right to litigate.64 This Court finds no factual or legal basis for the
grant of the award applying Article 2208 of the Civil Code.

WHEREFORE, the instant Petition is hereby GRANTED.

The Decision dated 27 November 2019 of the Regional Trial Court,
Branch 211, Mandaluyong City in Civil Case No. 23857-R00-00 is
REVERSED. The Complaint for ejectment (unlawful detainer) is
DISMISSED for lack of cause of action.

SO ORDERED.

RAFAEL ANTONIO M. SANTOS

Associate Justice

62 Ibid.
63 Darines v. Quiñones, G.R. No. 206468, 2 August 2017.
64 Abobon v. Abobon, G.R. No. 155830, 15 August 2012.
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WE CONCUR:

ELIHU A. YBAÑEZ
Associate Justice

BONIFACIO S. PASCUA
Associate Justice

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, it is

hereby certi``fied that the conclusions in the above decision were
reached in consultation before the opinion of the Court was
written.

ELIHU A. YBAÑEZ
Associate Justice
Chairperson, Special Ninth Division

/CAB