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REPUBLIC OF THE PHILIPPINES

6TH JUDICIAL REGION
REGIONAL TRIAL COURT
BRANCH 66
BAROTAC VIEJO, ILOILO

EDITHA V. TABABA,
Plaintiff-appellee,

-versus- CIVIL CASE NO. 2015-1096

ELENA V. SORILLA
Defendant-appellant.
X ---------------------------------------------- X

MOTION FOR RECONSIDERATION

Defendant-appellant (defendant for brevity) by counsel respectfully

moves for a reconsideration of the Decision dated February 8, 2019, and
received on February 22, 2019 based on the following grounds:
A. THE AWARD OF P7,000.00 PER MONTH PURPORTEDLY
AS COMPENSATORY DAMAGES IS UNSUPPORTED BY
PROOF BUT BY AN ARBITRARY, CONJENCTURE OF
THE LOWER COURT. PLAINTIFFS’ POSITION PAPER
AND HER JUDICIAL-AFFIDAVIT DO NOT EVEN
SUPPORT SUCH CONJENCTURE.

B. AS PER EVIDENCE, ADDUCED DURING THE HEARING,

LIKE THE CERTIFICATE OF TITLE IN THE NAME OF
THE PARENTS OF THE PLAINTIFF AND DEFENDANT,
THE ABSENCE OF PARTITION AND IDENTIFICATION
OF THE SHARE OF PLAINITFFS’ MOTHER AT THE TIME
WHEN THE LATTER ALLEGEDLY SOLD LOT 27, IN
FAVOR OF PLAINTIFF, THE SUBSEQUENT EXECUTION
OF THE TWO PARTITION AGREEMENTS AFTER THE
SIGNING OF THE CALLED AGREEMENT DATED
JANUARY 15, 2002, (WHERE DEFENDANT, WILL
VACATE AFTER FIVE YEARS), PLAINTIFF’S RIGHT TO
RECOVER THE PROPERTY CANNOT BE RESOLVED
THRU A SUMMARY ACTION OF UNLAWFUL
DETAINER. IT SHOULD HAVE BEEN THRU A REGULAR
ACTION OF ACCION PUBLICIANA (BETTER RIGHT OF
POSSESION), UNDER THE EXCLUSIVE, ORIGINAL
JURISDICTION OF THE REGIONAL TRIAL COURT.

ARGUMENTS:
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A. THE AWARD OF P7,000.00 PER MONTH PURPORTEDLY

AS COMPENSATORY DAMAGES IS UNSUPPORTED BY
PROOF BUT BY AN ARBITRARY, CONJENCTURE OF
THE LOWER COURT. PLAINTIFFS’ POSITION PAPER
AND HER JUDICIAL-AFFIDAVIT DO NOT EVEN
SUPPORT SUCH CONJENCTURE.

The Honorable Court in its Decision dated February 8, 2019 affirmed

the Decision of the lower court with respect to the award of compensatory
damages in the amount of P7,000 per month. Lamentably the lower court
did not give any reason or justification when it affirmed the said lower court
decision.
There is no question that in forcible entry case or in unlawful
detainer, plaintiff is entitled to damages, as per Rule 70, Section 17 of the
Revised Rules of Court, to wit:
“SEC. 17. Judgment.- If after trial the court finds that
the allegations of the complaint are true, it shall render
judgment in favour of the plaintiff for the restitution of the
premises, the sum justly due as arrears of rent or as
reasonable compensation for the use and occupation of the
premises, attorney’s fees and costs. If it finds that said
allegations are not true, it shall render judgment for the
defendant to recover his costs. If a counterclaim is
established, the court shall render judgment for the sum
found in arrears from either party and award costs as justice
requires. (6a)”

The lower court as could be seen from his Decision, awarded

the amount of P7,000.00 per month without any proof to support such
award. This is contrary to the ruling of the Supreme Court, that

“ x x x The Regional Trial Court in reversing an appealed

case dismissing the action cannot decree the eviction of the
defendants and award damages. A court cannot take judicial
notice of a factual matter in controversy. The court may take
judicial notice of matters of public knowledge or which are
capable of unquestionable demonstration , or ought to be
known to judges because of their judicial functions. Before
taking such judicial notice the court must allow the parties to
be heard thereon. Hence, there can be no judicial notice on the
rental value of the premises in question without supporting
evidence. (Herrera vs. Bollos G.R. No.138258, January l8,
2002) (Underscoring ours)
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The Honorable Court, in sustaining the lower courts’ award of

P7,000.00 per month damages, ignored and did not consider, the
jurisprudence laid down by the Supreme Court. It was clearly held in Oscar
and Heidi Badillo vs. Honorable Arturo Tayag RTC Presiding Judge G.R.
No. 143976 dated April 3, 2003, that:
“XXX Indeed courts may fixed the reasonable
amount of rent for the use and occupation of a disputed
property. However, petitioners herein erred in assuming
that courts, in determining the amount of rent, could
simply rely on their own appreciation of land values
without considering any evidence. As we have said
earlier, a court may fixed the reasonable amount of rent
but it must still based its action on the evidence adduced
by the parties. (Badillo vs. Tayag G.R. No.143976,
April 3, 2003)
There is absolutely no evidence adduced by the plaintiff that could
serve as proof to support the conclusion that she is entitled to P7,000 pesos
per month as compensation. In fact, her Position Paper is not even
verified, by her and as shown in the records, it was Atty. Edwin Catacutan
who verified it, not her, In the plaintiffs’ Position Paper, it was never
shown that Atty. Edwin Catacutan, is competent or credible to make such
verification especially on the “reasonable compensation for the use and
occupation of the premises”.
No person ever testified, competent enough to prove that the
property is commercial, nor any document has been presented to prove that
the property is commercial.
Without proof upon which to determine the damages to be awarded
the award of P7,000.00 is pure conjencture. Certainly a reversible error, and
should not have been sustained by the Honorable Court.
Hopefully the Honorable Court shall take a deeper look on this
particular error, and not simply took this on a stride.

B. AS PER EVIDENCE, ADDUCED DURING THE HEARING,

LIKE THE CERTIFICATE OF TITLE IN THE NAME OF
THE PARENTS OF THE PLAINTIFF AND DEFENDANT,
THE ABSENCE OF PARTITION AND IDENTIFICATION
OF THE SHARE OF PLAINITFFS’ MOTHER AT THE TIME
WHEN THE LATTER ALLEGEDLY SOLD LOT 27, IN
FAVOR OF PLAINTIFF, THE SUBSEQUENT EXECUTION
OF THE TWO PARTITION AGREEMENTS AFTER THE
SIGNING OF THE CALLED AGREEMENT DATED
JANUARY 15, 2002, (WHERE DEFENDANT, WILL
VACATE AFTER FIVE YEARS), PLAINTIFF’S RIGHT TO
RECOVER THE PROPERTY CANNOT BE RESOLVED
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THRU A SUMMARY ACTION OF UNLAWFUL

DETAINER. IT SHOULD HAVE BEEN THRU A REGULAR
ACTION OF ACCION PUBLICIANA (BETTER RIGHT OF
POSSESION), UNDER THE EXCLUSIVE, ORIGINAL
JURISDICTION OF THE REGIONAL TRIAL COURT.

The Honorable Court upheld the decision of the lower court

sustaining plaintiffs’ summary action of unlawful detainer and ordering
defendant to vacate Lot 27 with an area of 5,192 square meters as per
dispositive portion of the Decision of the lower court dated September 3,
2015. The rationale of the said Decision lies on the so called Agreement
dated January l5, 2002.
While indeed, defendant, signed the so called Agreement dated
January 15, 2002 ( Exh. D ), where she could remain for five years, and after
the lapse of five years, she will vacate the said lot), evidence adduced before
the lower court, showed that the issue of possession is inextricably woven
on the issue of ownership considering that, subsequent to the signing of the
so called Agreement dated January 15, 2002, the plaintiff, defendant, their
mother Julieta Villaruz, and their other brothers and sisters signed on two
occasions, two partition agreements involving Lot 27. In these two
partition agreements, defendants’ share on Lot 27, was explicitly recognized.
Plaintiffs’ claim of ownership on Lot 27, is not well establishyed.
First, she claimed Lot 27 was sold to her by her mother Julieta Villaruz as
per Deed of Sale dated June 18, 1992, (marked Exh A). It might be true
Julieta Villaruz signed in the so called Deed of Sale.
However ,at the time of the signing of the said Deed of Sale, Lot 27
was not yet partitioned by the heirs of Alfredo Villaruz nor was Lot 27
given as the share of JulietaVillaruz. In fact, Lot 27 was still titled in the
name of Alfredo Villaruz when the alleged Deed of Sale was signed by
Julieta Villaruz. No evidence has been presented by the plaintiff showing
that the entire estate of Alfredo Villaruz, including Lot 27 was already
partitioned and the said Lot 27, went as the share of JulietaVillaruz when
the alleged Deed of Sale was signed on June 18, 1992. The lower court
simply made an unsupported conclusion that the estate of Alfredo Villaruz
were already partitioned among the heirs.
Withal, if the said Deed of Sale is indeed valid, what was only sold at
most is the undivided share, rights , and interest of JulietaVillaruz in
favour of the plaintiff, but not the specific metes and bounds.; As to what
are these shares, rights, and interests they have yet to be determined in the
Civil Case for Partition.
Second, even after the signing by JulietaVillaruz of the so called Deed
of Absolute Sale, plaintiff even signed the Partition Agreement (Exh. 4) on
July 17, 2004 and another Partition Agreement (Exh.21) signed on October
4, 2006, (Exh. 2). In these two partition agreements plainitiff signed
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together with defendant and their other siblings. In the first partition even
JulietaVillaruz signed too. Both partition agreements recognized defendants’
ownership of a portion of Lot 27.
Third, having signed the two partition agreements, plaintiff is now
estopped from insisting that she is the exclusive owner of Lot 27,
considering that these two partition agreements were signed very much later
from the signing of the said Deed of Absolute Sale. By the signing of these
two Partition Agreements, the claim of plaintiff that she is the absolute
owner of Lot 27 is no longer valid.
To determine whether plaintiffs’ summary action of unlawful detainer
could prosper, the question of ownership has to be resolved first, by
determining whether Lot 27 is already the share of Julieta Villaruz or is still
in the process of being partitioned. Likewise , the exact status of Lot 27
should also be resolved that is, whether defendant has a share in Lot 27, in
view of the two partition agreements signed by the plaintiff by the ,
defendant and by their siblings (heirs of Alfredo Villaruz).
From the foregoing, plaintiffs’ complaint should have been dismissed
because this is not a case of unlawful detainer. This case should have been
filed as one of acccion publiciana or the better right to posses of which it is
the Regional Trial Court who has the original exclusive jurisdiction.
The Honorable Court, even ignored the statement of the lower court in
the Decision of the latter when it states:
‘The novel issue in cases falling within this nature of
action is who between the parties have the better right to
posses the subject property . xxx (Decision dated September
3, 20l5 page 7) (Underscoring ours)
If the issue is who has the better right to possess then this is an accion
publiciana, not unlawful detainer. As explained by Professor Paras:
“(a) The accion publiciana is intended for the recovery
of the better right to possess, and is a plenary action in an
ordinary; civil proceeding before a Court of First Instance
(now RTC ) (Roman Cath. Bishop of Cebu v. Mangaron , 6
Phil.286) , and must be brought within a period of ten years
otherwise the real right of possession is lost. (See Art. 555,
No.4) The issue is not possession de facto but possession de
jure. (Rodriguez v. Taino, l6 Phil. 30l). The l948 Judiciary
Act did not introduce any modification to the well-
established principle that when deprivation of possession has
lasted more than one year, the action to recover falls within
the jurisdiction of the Court of First Instance. (Firmeza v.
David, 92 Phil.733) Commonwealth Act No. 538 which
provides for the automatic suspension of an action for
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ejectment against tenants occupying lands which the

government desires to acquire thru purchase or expropriation
proceedings, applies only to forcible entry and unlawful
detainer cases, and NOT to the “accion publiciana,”
(Miranda v. Legaspi, et al., 92 Phil. 290) (Paras , New Civil
Code, page 102, Vol I, l999 Ed.)

The Honorable Court, again ignored the basic tenent in unlawful

detainer, that the tolerance or permission must be present at the beginning of
possession. As held in Jose vs. Alfredo, G.R. No.169380, November 26,
2012:
“The Court has consistently adopted this position.
Tolerance or permission must have been present at the
beginning of possession , if the possession was unlawful from
the start an action for unlawful detainer would not be the proper
remedy and should be dismissed.
xxx
In unlawful detainer, the possession of the defendant
was originally legal as his possession was permitted by the
plaintiff on account of an express or implied contract
between them.”

In the instant case, the Honorable Court ignored the indubitable fact
that defendant was already in possession of portion of Lot 27 long before
January l5, 2002. This fact was even mentioned by the lower court in his
Decision.
Thus, it could never be said that defendant took possession of the
property, by contract, express or implied, or by tolerance.
Defendant was doubly frustrated when the Honorable Court affirmed
the Decision of the lower court without considering the fatal defect in the
instant action for ejectment. Hopefully in this Motion for Reconsideration,
these fatal and reversible errors shall be thoroughly considered by the
Honorable Court and the Decision of the lower court be reversed.
WHEREFORE, premises considered it is respectfully prayed that the
Decision dated February 8, 2019, be reconsidered and instead judgement
be rendered setting aside the Decision of the lower court dated September
3, 2015, and the complaint for unlawful detainer be dismissed.

Iloilo City, Philippines, March 7, 20l9.

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HECTOR P. TEODOSIO
Counsel for the Defendant-Appellant
TEODOSIO,
DAQUILANEA,VENTILACION AND
AVERIA LAW OFFICES
Javelosa Compound Arguelles Extn.
Locsin Subd., Jaro, Iloilo City
PTR No.6435682-/Iloilo City/l/7/19
IBP No 072639 /Pasig City/l/10/19
Roll No. 28461
MCLE Compliance No.V-0024244
MCLE Compliance No. VI-0000979
Tel. Nos. (033) 3202977 (033)5092734
E-mail add: heclaw@yahoo.com

ATTY. EDWIN CATACUTAN

Counsel for the plaintiff
Casa Plaza Building,
Iznart St., Iloilo City

The Clerk of Court

RTC Branch 66
Barotac Viejo, Iloilo

Greetings:

Please set the foregoing motion for the consideration and resolution
of the Honorable Court on March 29, 20l9 at 2:00 P.M.

HECTOR P. TEODOSIO

Received copy:
ATTY. EDWIN CATACUTAN
Counsel for the plaintiff
Casa Plaza Building,
Iznart St., Iloilo City
By: _______________ Date: __________________

EXPLANATION

The foregoing motion for reconsideration was served thru mail to this Honorable
Court because of the far distance of the law office to this Honorable Court.

HECTOR P. TEODOSIO
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