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REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
CEBU CITY

ELENA VILLARUZ SORILLA,

Petitioner,

-versus-
CA.G.R. NO.________
(Civil Case
No.2015-1096
EDITHA V. TABABA, For: Unlawful Detainer
Respondent. Regional Trial Court Br. 66,
X ------------------------------- X Barotac Viejo, Iloilo)

PETITION FOR REVIEW

I. THE CASE:

  Petitioner (defendant-appellant before the lower court) is sought to be

ejected from Lot 27, thru a summary action of unlawful detainer, by
respondent (plaintiff appellee before the lower court), although the said
property, together with the other properties of the late spouses Alfredo and
Julieta Villaruz were not yet partitioned and still titled in the name of the
aforesaid deceased spouses.

Petitioner and respondent are sisters. The Municipal Circuit Trial

Court of Estancia (MCTC Estancia for brevity) invoking the doctrine of
estoppel, rendered a Decision dated September 3, 2015, and in its
dispositive portion it states: 

“WHEREFORE, judgment is hereby rendered in favour

of the plaintiff. For the purpose of this action, plaintiff is
declared owner of Lot 27 with an area of 5,192 square meters
under Subdivision Plan of Lot 3 of PSD76870 AMD (Exh. “5”)
of Transfer Certificate of Title No. 53601. As such, plaintiff has
the better right to possess the same. Defendant or any of her
heirs, assigns, successors in interest, and any person claiming
rights, interests and titles under her are directed to vacate the
premises and surrender possession thereof to the plaintiff.
Defendant is also directed to pay plaintiff:

1. Compensatory damages of P7,000.00 per

month from May 16, 2006 until possession of
the property is surrendered to the plaintiff.

2. Attorney’s fees in the amount of P20,000.00

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and litigation expenses of P20,000.00

SO ORDERED.

When the aforesaid decision of MCTC Estancia, was appealed to the

Regional Trial Court Br. 66, Barotac Viejo (RTC Br. 66 for brevity), the
latter in its Decision dated 08 February 2019, affirmed (with modification)
the decision of the said MCTC Estancia. RTC Br. 66 in its Decision dated 08
February 2019, states in its dispositive portion:

“WHEREFORE in view of the aforegoing, the appeal is

hereby dismissed and the Decision of the 2nd Municipal
Circuit Trial Court of Batad, Estancia, Iloilo dated September
3, 2015 in Civil Case No.311 (E) subject of the appeal is
hereby granted with modification that the award of attorneys
fees is set aside. (Underscoring ours)

Petitioner filed a Motion for Reconsideration to the said decision and

RTC Br. 66, in its Resolution dated August 13, 2019, again modified its
earlier decision, deleting the award of damages of P7,000.00 per month
from May 16, 2006. In the dispositive portion of the said Resolution its
states:

WHEREFORE, the Motion for Reconsideration filed by

defendant-appellant is partly granted. The assailed Decision is
modified in that the award of damages of Php7,000.00 per
month from May l6, 2006 until possession of the property is
surrendered to the plaintiff and the attorneys fees are hereby
deleted. (Underscoring ours)

As the wrongful portion of the Decision of MCTC Estancia, on the

ejectment of petitioner was not reversed but still affirmed, petitioner now
appeals to the Honorable Court on that wrongful decision of RTC Br. 66,
by way of petition for review.

Timeliness of this Petition

The aforementioned Decision dated 08 February 2019 of RTC Br. 66

was received by herein petitioner on February 22, 2019. A timely Motion for
Reconsideration was filed on March 8, 2019, and thereafter RTC Br. 66,
rendered a Resolution dated August 13, 2019 and received by herein
petitioner on October 3, 2019. Attached are original certified copies of the
Decision dated 08 February 2019, and the Resolution dated August 13, 2019,
marked as Annexes “A” and “B”, and made as integral parts herein.

Petitioner had 15 days to file her Petition for Review, or until October
15, 2019. However on October 14, 2019 herein petitioner filed by
registered mail a Motion for Extension of 30 days to file her Petition for
Review and at the same time paying the appeal docket fee thru money order.
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II. THE PARTIES:

Petitioner is of legal age, widow, and a resident of Brgy. Villa Panian,

Estancia, Iloilo. She is the defendant-appellant in Civil Case No.2015-l096
(appealed case) before the RTC 66, Barotac Viejo, entitled Editha Tababa,
vs. Elena Sorilla, and also as defendant in the summary action for unlawful
detainer, Civil Case No. 311 (E) before MCTC Estancia , Iloilo, entitled
Editha Tababa vs. Elena Sorilla.

Respondent is of legal age, married, and a resident of No.8 Walnut St.,

Pacific Grand Villa, Lapu-Lapu City but represented in this petition for
review by her counsel of record, Atty. Edwin Catacutan, at his address at
Catacutan Law Office, Casa Plaza Bldg., Iznart Street, Iloilo City. The said
respondent is the plaintiff before the Regional Trial Court of Barotac Viejo
Branch 66 , and also before the MCTC Estancia, Iloilo in connection with
the aforementioned cases.

III. BACKGROUND OF THE COURT PROCEEDINGS:

The court proceedings,

of unlawful detainer.

Respondent (as plaintiff in MCTC Estancia) filed her complaint for

unlawful detainer, alleging that petitioner (as defendant in MCTC Estancia)
refused to vacate Lot 27, despite the expiration of five (5) years from
January 15, 2002, the date of the Agreement dated January 15, 2002 (Exh.
D). Attached is a copy of the Complaint marked as Annex “C”. The
Agreement dated January 15, 2002, is attached in the said Complaint, as one
of the annexes;

Petitioner in her Amended Answer dated July 8, 2013, vigorously

disputed the said complaint for unlawful detainer, arguing that the complaint
is not one of unlawful detainer, but one for specific performance and that she
has been in possession of the portion of Lot 27 as one of the heirs or co-
owner. She further agued, that the complaint for recovery of possession is
under the exclusive jurisdiction of the Regional Trial Court.

Petitioner further alleged that, being an heir and one of the co-owners
of the land in question, she is entitled to possess any portion thereof.
Attached is a copy of the Amended Answer marked as Annex “D”;

During the Pre-Trial Conference, the following facts were agreed

upon:

STIPULATION OF FACTS:

1. The family relationship of the parties being sisters;

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2. Julieta A. Villaruz is the mother of plaintiff and the

defendant;

3. Lot 3 Psu-76870-EMD covered by TCT No. T-53601

registered in the name of Alfredo Villaruz and Julieta
Arroyo was the property of the parents of the parties;

4. The property under litigation is covered by TCT No. T-

53601 issued by the Registry of Deeds of the Province of
Iloilo;

5. The property is covered by Tax Declaration No. 0039 in

the name of Alfredo Villaruz issued by the Municipality of
Estancia;

6. The signature in the agreement is authentic;

7. The defendant received the Demand Letter dated

November 4, 2008 from the plaintiff;

8. The receipt of said Demand Letter was on December 2,

2008 as shown in the registry return card;

9. Various efforts have been exerted or attempted by the

plaintiff to settle the controversy with the defendant but the
same was not successful. Hence, the case was filed;

10. Lot 3 covered by TCT No. T-53601 was a conjugal

property of the deceased spouses Alfredo Villaruz and
Julieta Villaruz.

11. At the time of death of Alfredo Villaruz, Julieta Villaruz is

entitled to keep and represent the property as her conjugal
share, an additional fraction of the deceased husband as
an heir of that husband, in accordance with the civil and
family code.
12.The parcel of land described in paragraph 3 and
paragraph 4 of the complaint with an area of 5,192
square meters and described as portion of Lot 3
subdivision plan Psu 76780 is within the title known as
Transfer Certificate of Title No. T-53601;

13.Until today Transfer Certificate of Title No. T-53601 was

not cancelled and is still registered in the name of the late
Spouses Julieta Villaruz and Aflredo Villaruz with liens
and encumbrances appearing in the Certificate of Title;
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14.The portion consisting of an area of 5,192 square meters

described in paragraph 3 and paragraph 4 of the
complaint is not titled yet in the name of the plaintiff;

15.The 5,192 square meters described in paragraph 3 and

paragraph 4 of the complaint is not covered by any tax
declaration in the name of the plaintiff;

16.There is a pending civil case for Partition filed before the

Regional Trial Court, Branch 66 docketed as Civil Case
No. 2010-714 entitled Elena Villaruz Sorilla versus Editha
Tababa, Alfredo Villaruz, et. al.,

17.Spouses Alfredo Villaruz and Julieta Villaruz, parents of

the parties, are already dead;

18.The estate of Alfredo Villaruz and Julieta Villaruz is not

yet settled;

19.The defendant being the sister of the plaintiff is one of the

heirs of the estate of Alfredo and Julieta Villaruz;

20. The defendant being the daughter of the deceased is

considered as a co-owner of the property covered by TCT
No. T-53601;

21. Alfredo Villaruz died ahead of Julieta Villaruz;

22. The Deed of Absolute and Definite Sale was not registered
in Transfer Certificate of Title No. T-53601 except by way
of adverse claim;

23. The Agreement dated January 15, 2002, was notarized by

Mateo B. Baldoza, Jr. as Acting Presiding Judge, Notary
Public Ex-Officio;

Attached is a copy of the Preliminary Conference Order marked as Annex E;

The Preliminary Conference having been terminated, petitioner and

respondent submitted their respective Position Papers. Attached are the
respective Position Papers of the petitioner and respondent marked as
Annexes “F” and “G”;

These position papers containing various annexes or exhibits of the

respective parties.
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IV. THE FACTS:

During the lifetime of the parents of the petitioner and respondent,

(they being sisters), their parents (Alfredo Villaruz Sr., and Julieta Villaruz)
are the registered owners of a big property located in Brgy. Villa Panian,
Estancia, Iloilo known as Lot 3, Psu-76870, and covered by Transfer
Certificate of Title T-53601. The aforesaid title was attached in the Position
Paper of petitioner and marked Exh. B as well as in the Complaint of
respondent. The said property has an area of about 56 hectares.

   As the aforesaid property is agricultural, it falls under the coverage of

the Comprehensive Agrarian Reform Law. Consequently, the said property
was subdivided allotting portions of the said property to qualified agrarian
beneficiaries, and retaining some, for the parents of the petitioner and
respondent as their retention areas. The subdivision of the said property, into
several sub-lots is evidenced by subdivision plans marked Exhibits 5, 6, 7
and 8, attached and made as integral parts of petitioner’s Position Paper,
(as defendant) filed before the MCTC Estancia.

The sublots that were created by reason of the subdivision of this

parcel of land, are Lot 12, Lot 30, Lot 61, Lot 65, Lot 53, Lot 30, Lot 49, Lot
8 and the most important Lot 27 because portion of Lot 27, is the property
subject matter of the unlawful detainer case now the subject of this appeal.
These undisputed facts are established in the petitioners’ Position Paper and
in the Preliminary Conference Order issued by MCTC Estancia.

Alfredo Villaruz Sr., father of the petitioner and respondent, died

intestate in 1988, while Julieta Villaruz (their mother) died in 2008, also
intestate. Leaving as heirs, are their children namely, Alfredo Villaruz Jr.,
Eva Villaruz Junsay, Eduardo Villaruz, Electa Villaruz Estandarte, Elnora
Villaruz Delgado, Perla Villaruz Bacanto, Pilar Villaruz, petitioner Elena
Sorilla and respondent, Editha Tababa.

There is no intestate or testate proceeding to settle and administer the

estate of the deceased spouses. Although Alfredo Villaruz Sr., died ahead,
Julieta Villaruz, petitioner, respondent, and the rest of the heirs, did not
partition the said  estate. It remained in co-ownership. In like manner, that
the conjugal share of Julieta Villaruz was not liquidated, determined, and
separated.

Sometime in 1992, respondent approached Julieta Villaruz, her

mother, and  told the latter that she intend to travel to the USA. She told her
mother that to get a travel visa from the US Embassy, she must have some
documents to show that she own some properties. She then asked Julieta
Villaruz to sign a document purportedly selling in her favor Lot 27, as she
will show the said document to the US Embassy officials when she will be
interviewed for visa application.
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Initially, Julieta Villaruz was hesitant, because it might cause a

problem later, among her other children, to include the petitioner. 

      However, respondent assured her (the late Julieta Villaruz) that the
document that she will sign is not a real sale but is just for the purpose of
submitting the requirements with the U.S. Embassy. She further assured
Julieta Villaruz that she will not use the said document of sale, to her
advantage as against her sisters including the petitioner. This circumstance
was abundantly proven, in the affidavit of petitioner, attached to her Position
Paper, and filed in MCTC Estancia.

With that assurance, respondent presented to Julieta Villaruz for her

to sign, a document as what is known as the Deed of Absolute Sale, dated
June 18, 1992, attached as Annex A to the Complaint marked then as Exh. A
for respondent. When the said Deed of Absolute Sale was signed by Julieta
Villaruz, Lot 27 is still titled in the name of Alfredo Villaruz and Julieta
Villaruz, per TCT T-53601 (Exh. B), and attached in the Position Paper.

The said Deed of Absolute Sale, appeared to have been notarized in

Balasan, Iloilo, although signed in Estancia, Iloilo and notarized by a certain
Atty. Inocentes Adaniel, the Presiding Judge of Balasan MCTC.

Sometime in January 2002, respondent commented on the restaurant

of petitioner already existing in a portion of Lot 27- a part of the common 
properties of the estate of Alfredo Villaruz Sr. The restaurant is known as
Nazz.

The particular portion where the said restaurant is located is along the
national highway also in Brgy. Villa Panian, Estancia, Iloilo. The estimated
land area where the said restaurant is located including the facilities is about
between 1,500 square meters to 2,000 square meters, which is a portion of
Lot 27 as previously mentioned. When the said restaurant, was constructed,
Julieta Villaruz who was then still  alive was aware and saw the ongoing
construction, together with other brothers and sisters of the petitioner to
include the respondent. They never objected. 

On that same occasion in  2002, respondent told the petitioner that
there might be a possibility that a portion of Lot 27, might be her share in
the inheritance or co-ownership, and with petitioners’ restaurant already
located in a portion of Lot 27, there might be a problem later during the
partition.

Considering that in 2002, petitioner has just recovered from a marital

crisis, and she does not want to create ill feeling with the respondent,
especially that all the sisters and brothers are planning to have a meeting to
discuss and agree as to how the co ownership or the Villaruz estate shall be
divided, petitioner told the respondent that she is willing to vacate portion
of Lot 27, if the share of the respondent during the partition will fall in the
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specific place where her restaurant is standing.

Right then and there, respondent presented to petitioner in  Estancia,
Iloilo a document for the petitioner to sign. Without a detailed and copious
reading, of the document, and relying greatly on the assurance and
explanation of respondent, that she will vacate only if the whole of Lot 27
will go to the respondent as her share, petitioner bereft of legal advice,
signed the document without a thorough understanding of its possible legal
effect. She signed the document, but not in the presence of Judge Baldoza,
the alleged notarizing officer. It turned out that the said document is the so
called Agreement dated January 15, 2002, purportedly, notarized by
Municipal Judge Mateo Baldoza of San Dionisio, Iloilo, Ex Officio. The
said Agreement is attached in petitioner’s Position Paper filed in MCTC
Estancia, also as Annex D of the Complaint.

  Two years and several months after the notarization of the so called
Agreement, the brothers and sisters including the petitioner and respondent
met. In that meeting, they agreed, to partition the entire estate and properties
of their parents, especially that their mother at that time is already old. Thus,
on July 17, 2004 a meeting was held in the restaurant of Elnora Villaruz
Delgado, known as Basnigan, in Brgy. Villa Panian, Estancia, Iloilo. In that
meeting, all the brothers and sisters, were there including their mother,
Julieta, the petioner and the respondent. The meeting   was presided by
their brother Renato Villaruz.

There, an agreement was reached, and the shares of the heirs were
indicated and allotted to them, thru the respective lot numbers. The shares
of the heirs or co-owners thru the respective lot numbers are as follows: 

NAME OF HEIRS           SHARE OF LOTS

Alfredo Villaruz - 2.500 Lot 8 & 49

Eva Junsay - 2.000 Lot 30 & Lot 53
Eduardo Villaruz - 3.000 Lot 8 & 65
Editha Tababa (respondent) - 2.500 Lot 65 & 61
Electa Estandarte - .700 Lot 30
Renato Villaruz - 2.500 Lot 65 & 61
Elena Barba (petitioner) - 1.800 Lot 30, 12, 27 & Lot 53
Elnora V. Delgado - 2.500 Lot 65, 61 & 62
Julieta Villaruz - 1.5506 Lot 30 & 53
8,300 7,206
Perla - .500
Kiaw - .300
____________________
19.8506(Underscoring ours)

In the said agreement, the share of the respondent is 2.5 hectares, to be

taken from Lot 65 and Lot 61, while the share of petitioner is 1.800 hectares,
to be taken from Lot 30, Lot 12, Lot 27, (the property in question ) and Lot
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53. In the said Agreement, the name of petitioner is Elena  Barba as she,
after she became a widow got married to a Barba. The respondent and the
petitioner, their mother, and other siblings also signed. This Agreement is
attached as Annex 1 to the Answer and also marked as Exh 4, in petitioner’s
Position Paper. 

        During that whole day meeting, the respondent and the rest of the
heirs, never discussed the alleged sale of Lot 27 purportedly executed by
Julieta Villaruz, nor the Agreement dated January 15, 2002, where petitioner
shall vacate Lot 27, five years after January 15, 2002. In fact Lot 27, was
included as among the lots to be partitioned, in the co-ownership. Renato
Villaruz presided the meeting, and when an agreement was reached, Renato
Villaruz prepared an Agreement of Partition in his own handwriting as
shown in Exh. 4 (attached to the Position Paper.) The respondent and
petitioner, all the brothers and sisters their mother Julieta Villaruz signed the
same.

   Lamentably, several months after the signing of aforesaid Agreement

(Exh. 4,) other siblings including the respondent complained regarding the
handwritten partition agreement. She complained why she has no share in
Lot 27.

Consequently on October 4, 2006, another meeting was held and all

the brothers and sisters including the petitioner and respondent were present
except Julieta Villaruz. The meeting was held also in Estancia, Iloilo,
presided again by Renato Villaruz. As a result of that meeting, another
agreement was reached reduced in writing , prepared by Renato Villaruz
and signed by the heirs, to include the petitioner and respondent. In the said
meeting, respondent was given a share of 3,692 square meters, located in
Lot 27, while petitioner was given 1,500 square meters in the same Lot 27.
This agreement prepared by Renato Villaruz, were signed by all the heirs
as shown in Exh. 21 (Petitioners Position Paper).  Respondents signature is
shown in Exh. 21-A-1.

  Although there was already a prepared subdivision plan no separate

title was issued for Lot 27, nor to any other sublots . Lot 27, remained
covered by TCT T- 53601, in the name of Alfredo Villaruz Sr. and Julieta
Villaruz. The tax declaration for Lot 27, as of 2002 and up to the present is
still in the name of Alfredo Villaruz, as shown in Exhs. 9, 10, 11, 12, 13, 14,
15 and 16 (of petitioner’s Position Paper). 

      On October 1, 2010, petitioner, filed an action for partition before the

Regional Trial Court, Branch 66, docketed as Civil Case No.  010-714.
Among those named as defendants are Editha Tababa (the respondent )
Alfredo Villaruz Jr., Eva Junsay, and all the rest of brothers and sisters.
The said civil case for partition is evidenced by Exh. 3, also attached in
petitioner’s Position Paper filed in MCTC Estancia.
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V. ASSIGNMENT OF ERRRORS:

A. RTC Br. 66 ERRED IN AFFIRMING THE

DECISION OF MCTC ESTANCIA, WHEN THE LATTER
HELD THAT PETITIONER TOOK POSSESSION OF THE 
PROPERTY IN QUESTION BY VIRTUE  OF THE
AGREEMENT (EXH. D) PURPORTEDLY DATED 
JANUARY 15, 2002, NOTWITHSTANDING THE FACT
THAT BEFORE JANUARY 15, 2002, PETITIONER WAS
ALREADY IN POSSESSION OF THAT PORTION OF LOT
27 AND THE RESTAURANT NAMED NAZZ WAS
ALREADY CONSTRUCTED AND EXISTING THEREAT.  

B. RTC BR. 66 ERRED IN HOLDING THAT

RESPONDENT IS THE OWNER OF LOT 27, BY VIRTUE
OF THE DEED OF DEFINITE SALE EXECUTED BY
JULIETA VILLARUZ, NOTWITHSTANDING THE FACT
THAT AT THE TIME OF THE ALLEGED SALE LOT 27
WAS NOT YET PARTITIONED AND THE SALE
SIMULATED.

C. RTC BR. 66 ERRED IN NOT HOLDING THAT

THE HANDWRITTEN  PARTITION AGREEMENT SIGNED
BY THE PETITIONER, THE RESPONDENT, AND  ALL
THE  OTHER HEIRS OF ALFREDO AND JULIETA
VILLARUZ, SHOWING AMONG OTHERS, THAT
PETITIONER IS ENTITLED TO A SHARE IN LOT 27, IS
VALID.

D. INSTEAD OF DISMISSING THE CASE OF

UNLAWFUL DETAINER, RTC BR. 66 , ERRED IN
ORDERING THE EJECTMENT OF PETITIONER FROM
THE PREMISES, AND IN THE PROCESS AFFIRMED THE
MCTC DECISION ORDERING THE EJECTMENT OF THE
PETITIONER.

E. RTC BR. 66 ERRED IN NOT AWARDING IN

FAVOR OF THE PETITIONER, THE VALUE  OF THE
IMPROVEMENTS INTRODUCED OVER THE PROPERTY
IN QUESTION;

VI -THE ISSUES:
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A. WAS PETITIONER ALREADY IN POSSESSION OF THE

LAND IN DISPUTE AND HER RESTAURANT
ALREADY CONSTRUCTED AND EXISTING BEFORE
THE SIGNING OF THE AGREEMENT PURPORTEDLY
DATED JANUARY 15, 2002 ( EXH D).  

B. AS ADMITTEDLY THE LAND IN QUESTION IS STILL

TITLED IN THE NAME OF THE PARENTS OF THE
PETITIONER AND RESPONDENT, THAT THE SO
CALLED DEED OF SALE EXECUTED BY THE LATE
JULIETA VILLARUZ WAS NOT EVEN REGISTERED IN
THE TITLE, THAT RESPONDENT HAD NOT PAID  THE
CAPITAL GAINS TAXES, AND  THE DOCUMENTARY
STAMP, THAT THE TAX DECLARATION IS STILL IN
THE NAME OF THE PARENTS OF THE PETITIONER
AND RESPONDENT AND THAT RESPONDENT
SIGNED THE TWO HANDWRITTEN PARTITION
AGREEMENT, SHOWING THAT PETITIONER HAS A
SHARE IN LOT 27, SHOULD THE FINDINGS AND
CONCLUSION OF RTC BR. 66 THAT IT IS THE
RESPONDENT WHO HAS THE BETTER RIGHT OF
POSSESSION AND THAT PETITIONER BE EJECTED
FROM THE PREMISES BE REVERSED;  
.  

C. AS IT WAS NOT REFUTED THAT PETITIONER TOOK

POSSESSION OF A PORTION OF LOT 27 , BUILT A
RESTAURANT (NAZ), THEREAT, AS AN HEIR OF THE
LATE SPOUSES ALFREDO AND JULIETA VILLARUZ,
IS SHE ENTITLED TO BE REIMBURSED OF THE
VALUE OF HER IMPROVEMENTS PURSUANT TO
ARTICLE 546, OF THE NEW CIVIL CODE.

VII-. ARGUMENTS:

A. RTC Br. 66 ERRED IN AFFIRMING THE

DECISION OF MCTC ESTANCIA, WHEN THE LATTER
HELD THAT PETITIONER TOOK POSSESSION OF THE 
PROPERTY IN QUESTION BY VIRTUE  OF THE
AGREEMENT (EXH. D) PURPORTEDLY DATED 
JANUARY 15, 2002, NOTWITHSTANDING THE FACT
THAT BEFORE JANUARY 15, 2002, PETITIONER WAS
ALREADY IN POSSESSION OF THAT PORTION OF LOT
27 AND THE RESTAURANT NAMED NAZZ WAS
ALREADY CONSTRUCTED AND EXISTING THEREAT.  
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MCTC Estancia in its Decision dated September 3, 2015, has ruled

that petitioner was able to possess the property in question by virtue of a

contract known as Agreement which will end on May 15, 2006. The contract

being referred to is the Agreement dated January 15, 2002, marked Exhibit

D. According to the MCTC Estancia:

“After evaluating the claims of the parties and the evidence

proferred in support thereof, this Court resolves to rule in
favour of the plaintiff.

In the instant case, possession of the property by the

defendant was by virtue of a contract with the plaintiff for
defendant to continue in the possession of the property for a
definite period (Until May 15, 2005). After the lapse of the
period, defendant’s possession became illegal. Defendant has
remained in possession of the property despite the lapse of the
period given. The instant action was filed within one year
from the time the last demand was given. The last demand
was sent November 5, 2008. The action was instituted on
September 29, 2009. Obviously, this is an unlawful detainer
case within the jurisdiction of the Court.” (Decision of the
lower court pages 5-6) (Underscoring ours)

The said findings and conclusion of MCTC Estancia , was affirmed by

RTC Br. 66, in the latters’ Decision dated February 8, 2019. In the said

Decision, the RTC Br. 66 said:

“Anent the first assignment of error, the lower

court did not err, in fact it acknowledged that defendant
was already in possession of the property in dispute, as
correctly stated by the lower court:”xxx Plaintiff herein
falls within the purview of a vendee in whose favour a
property was sold. Despite the sale by their mother
Julieta, she was not able to enjoy the the benefit of
possessing the property on account of the fact that the
defendant was in possession thereof at the time of the sale.
The right to exercise possession was further put on hold by
a consensual agreement between plaintiff and defendant
allowing the latter to continue thereof at the time of the
sale. The right to exercise possession was further put on
hold by a possession over the property for a definite
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period-(sic) until May 15, 2005.xxx”

In answer to defendant-appellant’s second

assignment of error, the lower court is justified in so
holding for the reason that plaintiff-appellee’s ownership
and possession of the 5,192 square meters land area
subject of this case is not only evidenced by the Deed of
Absolute and Definite Sale executed by their late mother
and the plaintiff-appellee but also because of the
Agreement dated January 15, 2002, entered as Doc. No.76,
Page No.16, Book No.XIX, Series of 2002, of the Notarial
Registry of Judge Mateo B. Baldoza Jr. executed between
the herein plaintiff-appellee and defendant-appellant dated
January 12, 2002, wherein defendant-appellant
acknowledged plaintiff’s ownership of the said 5,192
square meters property where defendant-appellant’s
restaurant NAZZ is located and where defendant-appellant
is allowed by the plaintiff-appellee to stay therein for a
period of five (5) years beginning May 15, 2001 to May
15, 2005, without any rent. That after the lapse of the said
five (5) years, defendant should vacate the subject
premises, without need of any demand or litigation.”

With due respect, the RTC Br. 66 and the MCTC Estancia, were

obviously mistaken when they concluded that petitioner took possession of

the entire property by virtue of the said Agreement. Petitioner , did not take

possession of the property in question by virtue of the Agreement dated

January 15, 2002. As proven by petitioner’s Position Paper she was already

in possession of the property in question long before January 15, 2002. She

proved that:

  “Sometime in January 2002, plaintiff made a comment

on the existing restaurant of defendant already located in one 
of the common  properties of the estate of Alfredo Villaruz Sr.
known as Nazz. The particular portion where the said restaurant
is located is along the national highway also in Brgy. Villa
Panian, Estancia, Iloilo. The estimated area where the said
restaurant is located including the facilities was them estimated
at between one thousand five hundred to two thousand square
meters (l,500 to 2,000 square meters), and it is in a portion of
Lot 27 as previously mentioned. When the said restaurant
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named Nazz was constructed, Julieta Villaruz who was then

still  alive was aware and saw the construction, together with
other brothers and sisters of the defendant to include the
plaintiff. They never objected. (Position Paper of the petitioner,
3rd paragraph page 4 ) (Underscoring ours) (Annex F of this
Petition)

The aforegoing evidence was not refuted by respondent.

In fact, even in the Complaint (Annex C) filed by the respondent

nowhere did she allege that petitioner took possession of Lot 27 by virtue of

the Agreement mark Exhibit D. What was simply alleged by her in

paragraph 5 of her Complaint was that she allowed petitioner to stay in said

Lot 27 by virtue of the said Agreement mark Exhibit D. It is clear that the

Complaint implicitly admits that petitioner has long been in possession of

the property long before January 15, 2002 except that she has to vacate five

(5) years after January 15, 2002.

B. RTC BR. 66 ERRED IN HOLDING THAT

RESPONDENT IS THE OWNER OF LOT 27, BY VIRTUE
OF THE DEED OF DEFINITE SALE EXECUTED BY
JULIETA VILLARUZ, NOTWITHSTANDING THE FACT
THAT AT THE TIME OF THE ALLEGED SALE LOT 27
WAS NOT YET PARTITIONED AND THE SALE
SIMULATED.

RTC Br. 66, in its Decision, also affirmed the conclusion of MCTC

Estancia that it is the respondent who is the owner of Lot 27, upholding in

the process the validity of the Deed of Absolute and Definite Sale executed

by Julieta Villaruz. It also brushed aside, petitioners’ assignment of error that

the said Deed of Sale was simulated. In the Decision dated February 5, 2019

of RTC Br. 66:

 15

“On defendant-appellant’s thid assignment of error, the

lower court is also correct since the Deed of Absolute and
Definite Sale was not only notarized by a Notary Public
named Atty. Inocentes L. Adaniel but it was witnessed and
signed by no other than the defendant-appellant herself,
hence, not simulated. The lower court also correctly
pointed out that “other than the bare allegation of the
defendant, no evidence was presented to support this claim
of simulation.” In addition the court a quo would like to
point out that in the Civil Case for Partition (page 526,
Record) filed by herein defendant-appellant againt her
siblings, docketed as civil Case No.010-714 dated
September 28, 2010, her siblings filed a verified answer
with counterclaim, dated December 1, 2011, stating among
other that: “On June 18, 1992, Julieta Villaruz, with the
knowledge and consent of all the children of Alfredo
Villaruz, Sr. and children of Julieta Villaruz (to include the
plaintiff) sold to defendant Editha V. Tababa a 5,192 square
meters portion of Lot 3, Plan Psu-76780-Amd, known and
identified as Lot 27.xxx As a matter of fact, plaintiff had
witnessed the same as shown by her signature thereon
placed on top the second line allotted for the witness. Xxx”
Certainly, the defense of defendant-appellant that the Deed
of Absolute Sale is simulated must necessarily fail.

As Lot 27, and all the rest of the properties of the late spouses Villaruz

were not yet partitioned, Julieta Villaruz cannot sell the particular Lot 27.

As of June 18,1992, (the date of the alleged sale between

respondent Editha Tababa, and her mother Julieta Villaruz) there is not a

shred of evidence to show that the heirs of Alfredo and Jullieta Villaruz to

include the petitioner and the respondent, have informally divided the estate

among themselves. Neither was there evidence to prove that the heirs of

aforementioned spouses to include the petitioner and the respondent have

taken possession of their so called “respective shares”. There is also no

evidence to prove that as of June 18, 1992 (the date of the alleged execution

of the Deed of Sale mark Exhibit A) the aforementioned heirs, including the
 16

petitioner and the respondent, have already dispose or sold any specific

share.

Even in the Deed of Definite Sale purportedly dated June 18, 1992

mark Exhibit A, the alleged seller Julieta Villaruz did not state that Lot 27

was her share nor did she allege in the said Deed of Sale that the mother lot

upon which Lot 27 came from was already partitioned. What appeared in

the Deed of Sale was simply this:

x x x I hereby CEDE, SELL, TRANSFER, AND

CONVEY by way of a Deed of Absolute Sale a portion of the
above-described property which portion is equivalent to 5,192
square meters x x x

In the said Deed of Definite Sale, Julieta Villaruz, never said, that Lot

27 was her share in the estate, nor did she state that Lot 27 was already

partitioned.

RTC Br. 66, failed to consider the fact that there was a stipulation of

facts in the Preliminary Conference Order dated November 13, 2014 issued

by MCTC Estancia, stipulating that the estate as aforementioned was not

yet settled. No. 18 of the Stipulation of Facts per Preliminary Conference

Order dated November 13, 204, states:

“18. The estate of Alfredo Villaruz and Julieta Villaruz

is not yet settled.”

Even in the same Preliminary Conference Order, under Admission No.

20 it was admitted that petitioner is a co owner:

“20. The defendant being the daughter of the deceased

is considered as a co-owner of the property covered by
TCT No. T-53601.” (Underscoring ours)
 17

The facts stipulated in the Pre-Trial Order are conclusive and binding

to the parties and therefore petitioner is clearly a co owner of Lot 27.

Even respondents’ herself in her judicial affidavit (attached to her

Position Paper) she admitted that the estate of Alfredo and Julieta Villaruz

were not yet partitioned and there is a pending civil case for partition

involving the petitioner, the respondent and all the other heirs of the

aforementioned spouses. Respondents Judicial Affidavit states:

“Q19. This mother lot no. 3, Psu-76870 appears to have a

total area of 56.7741 hectares, is this still the total area owned
by your parents?

A19. It’s much smaller now Sir because there was so

much area that were taken by the agrarian reform
implementation of the government.

Q20.At the time you purchased the portion of the said

property, was your father still alive?

A20. My father was already dead at that time, Sir, but I

only purchased from the share of my mother. That property
was a conjugal property of our parents.

Q21. Is Elena Sorilla your only sister?

A21. We are many brothers and sisters, Sir.

Q22. Considering that it appears that your parents had

quite a large landholding, had you and your siblings ever
partitioned the subject property?

A22. None, Sir. But there is now a pending partition

case filed by my sister Elena Sorilla, the defendant in the
present case, against me and the rest of our siblings.”
(Underscoring ours)

Therefore, it is undisputed that the estate of the Spouses Villaruz was

not yet partitioned. Lot 27 or the property in question is still titled in the

name of the parents of the petitioners and respondent as per Preliminary

 18

Conference Order, as shown in Stipulation Nos. 12 and 13.

The evidence on record would show that the tax declarations for Lot

27 as shown in Exh. 9, Exh. 10, Exh. 11, Exh, 13, Exh. 14, Exh. 15, and

Exh. 16 are still in the name of the late Alfredo Villaruz Sr. Granting that

respondent validly bought Lot 27, she could have Lot 27 declared in her

name for taxation purposes. As a matter of fact, in the Complaint of

respondent, the tax declaration attached as Annex C , showed that it was

still declared in the name of Alfredo Villaruz Sr.

Why did respondent fail to have a title issued for Lot 27 in her name,

if indeed she is the owner of the said property or if indeed the sale of the said

property is not simulated? The records will show that from June 18, 1992

up to the present or for 24 years, the tax declarations of these property was

never transferred to respondents’ name.

Her failure without any explanation to have the said property, Lot 27

titled in her name, and her failure to have the tax declarations of this

property transferred to her name for a period of no less than 20 years,

constitute an implied admission that Lot 27, is part of the estate and co-

owned by other heirs, and not exclusively owned by respondent. In a similar

breath, the Supreme Court, said:

“Courts cannot look with favour at parties who, by their

silence, delay and in action, knowingly induce another to
spend time, effort and expense, in cultivating the land, paying
taxes, and making improvements thereon for 30 years, only
to spring from ambush and claim title when the possessors’
effort and the rise of the land values ofter an opportunity to
make easy profit and his expense. (Lola vs. Court of Appeals
145 SCRA 439)
 19

Responodnets’ claim of ownership is anchored on a shaky ground.

The Deed of Sale marked Exh. A was executed by Julieta Villaruz who is

just a co-owner of Lot 27 because as of the date of the execution of the so

called Deed of Sale, the entire estate including Lot 27 of the Spouses

Alfredo and Juileta Villaruz were not yet partitioned and settled.

Undeniably, Lot 27 is the property of spouses Alfredo and Julieta

Villaruz and with the death of Aflredo Villaruz Sr. in 1988, the petitioner,

the respondent, their brothers and sisters and their mother Julieta Villaruz

became co-owners of Lot 27 by way of succession pursuant to Art. 712 of

the New Civil Code which states:

“Art. 712. Ownership is acquired by occupation and by

intellectual creation.

Ownership and other real rights over property are

acquired and transmitted by law, by donation, by testate and
intestate succession, and in consequence of certain contracts,
by tradition.

They may also be acquired by means of prescription.”

Therefore, granting that the Deed of Sale marked Exhibit A is not

simulated and is valid, Julieta Villaruz could not legally sell Lot 27. What

she could only sell is her hereditary share or conjugal share in the estate of

Alfredo Villaruz that is found in Lot 27. The aforementioned sale of Julieta

Villaruz cannot affect the share of the petitioner in Lot 27 because the latter

is also a co-owner of the said lot.

Julieta Villaruz being a co-owner could only sell her ideal or indiviso

share and when she allegedly sold her share in favour of respondent, the

latter can only own that part owned by Julieta Villaruz. Art. 493 of the New
 20

Civil Code states:

“Art. 493. Each co-owner shall have the full

ownership of his part and the fruits and benefits pertaining
thereto, and he may therefore alienate, assign or mortgage it,

As explained by the Supreme Court, in the case of Fe Quijano vs.

Atty. Daryll Amante supra G.R. No.164277, October 08, 2014;

“The disputed property originally formed part of the estate of

the late Bibiano Quijano, and passed on to his heirs by operation
of law upon his death.22 Prior to the partition, the estate was
owned in common by the heirs, subject to the payment of the
debts of the deceased.23 In a co-ownership, the undivided thing or
right belong to different persons, with each of them holding the
property pro indiviso and exercising her rights over the whole
property. Each co-owner may use and enjoy the property with no
other limitation than that he shall not injure the interests of his co-
owners. The underlying rationale is that until a division is actually
made, the respective share of each cannot be determined, and
every co-owner exercises, together with his co-participants, joint
ownership of the pro indiviso property, in addition to his use and
enjoyment of it.24

Even if an heir’s right in the estate of the decedent has not

yet been fully settled and partitioned and is thus merely inchoate,
Article 49325 of the Civil Codegives the heir the right to exercise
acts of ownership. Accordingly, when Eliseo sold the disputed
property to the respondent in 1990 and 1991, he was only a co-
owner along with his siblings, and could sell only that portion that
would be allotted to him upon the termination of the co-
ownership. The sale did not vest ownership of the disputed
property in the respondent but transferred only the seller’s pro
indiviso share to him, consequently making him, as the buyer, a
co-owner of the disputed property until it is partitioned.26

As Eliseo’s successor-in-interest or assignee, the respondent

was vested with the right under Article 497 of the Civil Codeto
take part in the partition of the estate and to challenge the partition
undertaken without his consent.27Article 497 states:

Article 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
 21

or assignor to maintain its validity. (Underscoring ours)

Lamentably, RTC Br. 66 and MCTC Estancia, ignored the aforegoing

civil law doctrine. They did not pass upon on the right or authority of Julieta

Villaruz to sell Lot 27 in favor of the respondent notwithstanding the fact

that it was clearly admitted in the Preliminary Conference Order, that the

estate of Alfredo Villaruz and Julieta Villaruz was not yet settled.

The Deed of Definite Sale

is simulated.

RTC Br. 66 did not uphold the defense that the so called Deed of

Definite Sale is simulated.

A simulated document may exist in a private document, or even in a

public document. Thus an aggrieved person who questioned and attacked a

document as being simulated is not prevented from proving that indeed it is

simulated. Just because a document like a deed of sale is a public document

acknowledged or notarized before a licensed notary public, that does not

necessarily mean it is not simulated.

If it is shown that there is no price, or that there was no real price or

consideration and the parties executed or signed the document not as a real

sale but for some other purpose then it is simulated. Article 1471 of the New

Civil Code, states:

Art. 1471. “If the price is simulated, the sale is void

but the act maybe shown to have been in reality or donation
or some other act or contract. (Underscoring ours)

Professor Paras, explaining this principle, said:

 22

(1) Simulated Price

(a) The price must not be fictitious. Therefore if the

price is merely simulated, the contract as a sale is
void. It may, however, be valid as a donation or
some other agreement, provided the requirements of
donations or other agreements have been complied
with. If these requirements do not exist, then, as a
sale, the contract is absolutely void, not merely
voidable.

(b) A simulated price is fictitious. There being no

price, there is no cause or consideration; hence, the
contract is void as a sale. However, it is enough that
the price be agreed on at the time of perfection. A
rescission of the price will not invalidate the sale.
(Paras, New Civil Code page 32 Vol. V 2000
Edition, citing Cruzado vs. Bustos 34 Phil. 17, De
Belen vs. Collector of Customs, 46 Phil. 241) and
(10 Manresa 39-45)

The simulation of a contract like a deed of sale was treated squarely,

under Article 1345 of the New Civil Code which states:

“Art. 1345. Simulation of a contract may be

absolute or relative. The former takes place when the
parties do not intend to be bound at all; the latter, when
the parties conceal their true agreement.”

Professor Paras enumerated the requirements for simulation which

are:

“(a) An outward declaration of will different from

the will of the parties;

(b) The false appearance must have been intended

by mutual agreement;

©The purpose is to deceive third persons.

(Paras, New Civil Code, page 636, Vol. IV, 2000
Edition) (Underscoring ours)

Indeed when a contract is absolutely simulated it is void. Art. 1346 of

the New Civil Code states:

 23

“Art. 1346. An absolutely simulated or fictitious

contract is void. A relative simulation, when it does not
prejudice a third person and is not intended for any
purpose contrary to law, morals, good customs, public
policy binds the parties to their real agreement.”

In fine, even if the sale of a property is in a public document like a

deed of sale and even if notarized by a notary public, the sale may still be

considered fictitious. In Castillo vs. Castillo L-81238, January 22, 1980 the

Supreme Court held:

“If a mother sells to her child property at a price very

much lower than what she hast paid for it, only three (3)
months before, this is in indication that the sale is
fictitious.”

In one case, the Supreme Court held:

A contract of sale is void and produces no effect

whatsoever where the price, which appears therein as paid, has
in fact never been paid by the purchaser to the vendor
(Meneses Vda. de Catindig vs. Heirs of Catalina Roque, L-
25777, November 26, 1976, 74 SCRA 83, 88; Mapalo vs.
Mapalo, 123 Phil. 979, 987; Syllabus, Ocejo, Perez & Co. vs.
Flores and Bas, 40 Phil. 921).

Such a sale is inexistent and cannot be considered

consummated (Borromeo' vs. Borromeo, 98 Phil. 432;
Cruzado vs. Bustos and Escaler, 34 Phil. 17; Garanciang vs.
Garanciang, L-22351, May 21, 1969, 28 SCRA 229). (Spouses
Salvacion Ladanga et. al. vs. Court of Appeals, et. al., G.R.
No. L-55999, Aug. 24, 1984).

Undisputedly Lot 27 or any portion thereof, is a conjugal property,

jointly owned by the spouses Alfredo Villaruz and Juliet Villaruz. After the

death of Alfredo Villaruz, the petitioner, the respondent, their other brothers

and sisters and Julieta Villaruz are co-owners of Lot 27 and their shares by

metes and bounds has yet to be determined through the appropriate

settlement of the estate or partition agreement.

 24

Granting that the alleged sale made by Julieta Vilalruz in favor of the

respondent of the said Lot 27 (conjugal property) is not simulated, still it is

clearly void, becasue:

“(9) Sale of Conjugal Properties

The sale of conjugal properties cannot be made by

the surviving spouse without the formalities established
for the sale of property of deceased persons, and such sale
is VOID as to the share of the deceased spouse. (Ocampo
v. Potenciano, L-2263, May 30, 1951; Talag v. Tankengco,
92 Phil. 1066). The vendee becomes a trustee of the share
of the latter for the benefit of his heirs, the cestui que
trustent. (See Art. 1456, Civil Code; Cuison, et. al. v.
Fernandez, et. al., L-11764, Jan. 31, 1959). (Cited in Paras,
New Civil code page 809 Vol. IV 2000 Edition)
(Underscoring ours)

Article 1409 of the New Civil Code expressly provides that when a

contract is absolutely simulated it is inexistent and void from the beginning.

Thus:

“Article 1409. The following contracts are inexistent and

void from the beginning: x x x

2. Those which are absolutely simulated or fictitious

xxx

According to Professor Tolentino:

“A void or inexistent contract or equivalent to nothing; it

is wanting in civil effects. The following are example of
inexistent contract:

1.Those which are simulated or fictitious (Tolentino, New

Civil Code, page 629 Vol. IV, 1991 Ed.)

The conclusion of RTC Br. 66 and MCTC Estancia, that the Deed of

Definite Sale is not simulated because it was not notarized is contrary for

jurisprudence. In one case, the Supreme Court ruled:

 25

“We address ourselves first to the basic issue, to wit, the

validity of the three deeds of sale allegedly signed by Paulina
Baranda without knowing their contents. The respondent
court, rejecting the finding of the trial court, upheld the
questioned deeds, stressing that they were public documents
and that their authenticity could further be sustained by the
testimony of the private respondents. We disagree.

While it is true that a notarized instrument is admissible

in evidence without further proof of its due execution and is
conclusive as to the truthfulness of its contents, this rule is
nonetheless not absolute but may be rebutted by clear and
convincing evidence to the contrary. Such evidence, as the
Court sees it, has been sufficiently established in this case.”
(Baranda vs. Baranda 150 SCRA 66-67)

As further held by the Supreme Court in Ladanga et. al. vs. CA G.R.

No. L-55999, August 24, l989:

“A contract of sale is void and produces no effect

whatsoever where the price, which appears therein as paid, has
in fact never been paid by the purchaser to the vendor
(Meneses Vda. De Catindig vs. Heirs of Catalina Roque, L-
25777, November 26, l976, 74 SCRA 83, 88, Mapalo vs.
Mapalo, 123, Phil. 979, 987, Syllabus, Ocejo, Perez & Co. vs.
Flores and Bas, 40 Phil. 92l)

Such a sale is inexistent and cannot be considered

consummated (Borromeo’ vs. Borromeo, 98 Phil. 432,
Cruzado vs. Bustos and Escaler, 34 Phil. 17; Garanciang vs.
Garanciang L-2235l, May 21, l969, 28 SCRA 229)

Petitioner was able to clearly prove that the aforementioned Deed of

Definite Sale between Julieta Villaruz and the respondent is simulated. The

circumstances surrounding the execution of the said Deed of Sale was

narrated verily in the affidavit of petitioner attached to her Position Paper.

In her affidavit, respondent narrated how the respondent was able to

convince Julieta Villaruz to sign the Deed of Definite Sale.

As testified by the petitioner in her affidavit, respondent pleaded to

 26

their mother Julieta Villaruz to sign the said deed of sale as that is needed by

the respondent in order to secure a visa for her travel to the United States .

For easy reference, we quote paragraphs 9, 10, 11, 12 and 13 of the affidavit

of petitioner attached to her position paper, to wit:

“9. Sometimes in the early part of 1992, the plaintiff

Editha Tababa approached my mother and told her that she will
be going to the United States. She said she wanted first to be a
tourist and later to become an immigrant. She further said that she
needed some documents to show that she owned properties in the
Philippines, so that the U.S. Embassy could issue a tourist visa
for her.  When she told my mother about it, I was present.

10. Plaintiff Editha Tababa pleaded to my mother to

execute a Deed of Sale purportedly showing that she bought one
of the properties of the estate which is Lot 27 from our mother.
She also told me that to make it real and convincing to the U.S.
Embassy I should act as witness to the Deed of Sale.

11. At first my mother was hesitant because she said it

might be a problem later on to her other children because during
that time there was no agreement yet as to how all our properties
shall be divided and partitioned and the share of each one of us
are not yet agreed upon. 

12. Editha Tababa assured our mother that the Deed of

Sale she is asking is purely just to show compliance with the
requirement of the U.S Embassy for the purpose of securing a
visa. She further said that, it is just simulated, without
consideration and will not use the document, for any purpose,
other than to get a visa. With that explanation and assurance from
Editha Tababa my mother signed. 

13. Consequently, a Deed of Absolute Sale was prepared

by plaintiff Editha Tababa purportedly showing that a portion of
our properties under PSU - 76870 with an area of 5,192 sq. meters
described as Lot 27 was sold by our mother Julieta Villaruz to her.
Such Deed of Sale was attached as Annex A to the Complaint, for
unlawful detainer filed by Editha Tababa filed against me in
connection of the present case.  It is also marked Exh. A.”

Respondent did not rebut the said affidavit.

The Agreement that was entered into for the partition of the property

of the estate of spouses Villaruz in 2004, attached as Annex A to the Answer,

 27

also showed that the estate of the late spouses including Lot 27 was not

partitioned.

All the aforegoing petitioners’ evidence were not rebutted by

respondent before MCTC Estancia.

It was proven and as shown in the Position Paper and in the affidavit

of the petitioner that even after June 18, 1992, when Julieta Villaruz was still

alive, she continued to sell portions of Lot 27 to other persons. Paragraph

39 of the affidavit of the petitioner Elena Sorilla which was attached to her

Position Paper states:

“39. At present I am only occupying about 2,000 of lot 27

as the remaining portion are occupied by other persons who
bought portion of lot 27 from my mother one of the buyers is
Jimmy Rosas per deed of sale dated August 17, 1997 per notary
public Vicente Go (now Judge) in the aforementioned deed of
sale marked as Annex A of this affidavit and the receipt marked
Exhibit 19 ad 20 marked as exhibits during the pre-trial.”

The fact that Julieta Villaruz continued to sell portions of Lot 27 to

other persons like to Jimmy Rosas on Lot 27 this simply proved that there

was no real sale between the respondent and Julieta Villaruz and that

respondent did not object to the sales made by Julieta Villaruz to the other

occupants of Lot 27.

The seemingly unconcerned behaviour of the respondent, on the

selling of Julieta Villaruz to portions of Lot 27 to other persons and allowing

them to occupy portions of Lot 27 only proves that respondent is not the

real owner yet of Lot 27 and the purported deed of sale marked Exhibit A is

fictitious or simulated.

Evidently all the elements to prove that the sale is simulated are
 28

present. First, the price is grossly inadequate because Lot 27 has a total area

of 5,192 square meters and the purchase price is only P5,000. Second, the

respondent never took steps to pay the capital gains tax and the documentary

tax and the sale was never registered before the Register of Deeds.

C. RTC BR. 66 ERRED IN NOT HOLDING THAT

THE HANDWRITTEN  PARTITION AGREEMENT SIGNED
BY THE PETITIONER, THE RESPONDENT, AND  ALL
THE  OTHER HEIRS OF ALFREDO AND JULIETA
VILLARUZ, SHOWING AMONG OTHERS, THAT
PETITIONER IS ENTITLED TO A SHARE IN LOT 27, IS
VALID.

The Partition Agreements

were validly executed subsequent
to the Deed of Definite Sale
(albeit simulated)

RTC Br. 66 did not sustain nor uphold the validity of the two partition

agreements executed on July 17, 2004 and October 4, 2006 (Exhibit 4 and

Exhibit 21).

The reasoning of RTC Br. 66 that by petitioner’s filing of the civil

case for partition, she disregarded the handwritten partition agreement is

(with due respect) fallacious. On the contrary, that was the very reason why

petitioner filed a civil case for partition because the partition of the

properties have not been made, to include Lot 27.

Exhibit 4 and 21 clearly show that petitioner is co-owner of Lot 27,

and that the entire estate of the spouses Alfredo and Julieta Villaruz was not

yet partitioned nor settled and as such nobody could claim exclusive

ownership of the whole of Lot 27.

 29

What is evident from the records is that the partition agreements

marked Exhibits 4 and 21 were marked during the Preliminary Conference.

(Exh. 4 was attached in the Answer of petitioner as Exh. A). It was testified

to in the affidavit of the petitioner and also in the affidavit of Renato

Villaruz, the brother of the petitioner and the respondent, regarding the

partition of the properties. All these aforementioned affidavits were attached

in the position paper of the petitioner and furnished to the respondent.

In the case at bar, we respectfully submit that Exhibits 4 and 21, were

properly authenticated and its authenticity and due execution duly

established, thru the Position Paper of the petitioner, her affidavits and that

of Renato Villaruz. Petitioner’s Position Paper states:

In July 2004, Renato Villaruz, and other brothers and sisters

including the plaintiff and defendant have agreed for a meeting
to partition the entire estate and properties of their parents,
especially that their mother at that time is already old.

So on July 17, 2004 a meeting was held in the restaurant

of Elnora Villaruz Delgado, known as Basnigan, in Brgy. Villa
Panian, Esancia, Iloilo. During the meeting, all the brothers and
sisters were there including the mother, Julieta, the plaintiff and
the defendant. The meeting   was presided by Renato Villaruz.

There an agreement was reached and in the agreement, the

shares of the heirs were indicated thru their respective lot
numbers. The shares of the co-owners thru the lot numbers are
as follows: 

NAME OF HEIRS              SHARE OF LOTS

Alfredo Villaruz - 2.500 Lot 8 & 49

Eva Junsay - 2.000 Lot 30 & Lot 53
Eduardo Villaruz - 3.000 Lot 8 & 65
Editha Tababa - 2.500 Lot 65 & 61
Electa Estandarte - .700 Lot 30
Renato Villaruz - 2.500 Lot 65 & 61
Elena Barba - 1.800 Lot 30, 12, 27 & Lot 53
Elnora V. Delgado - 2.500 Lot 65, 61 & 62
 30

Julieta Villaruz - 1.5506 Lot 30 & 53

8,300 7,206
Perla - .500

Kiaw - .300
____________________
19.8506
(Underscoring ours)

In the said agreement, the share of the plaintiff is 2.5 has.,

to be taken from Lot 65 and Lot 61, while the share of defendant
is 1.800 hectares, to be taken from Lot 30, Lot 12, Lot 27, and
Lot 53. In the said Agreement, the name of defendant is Elena 
Barba as she, after she became a widow got married to a Barba.
The plaintiff, the defendant, their mother, and other siblings also
signed. This Agreement is attached as Annex 1 to the Answer and
also marked as Exh 4. 

During that whole day meeting, the plaintiff never

brought out regarding the alleged sale of Lot 27 to her by Julieta
Villaruz, nor the Agreement signed by the defendant to vacate
Lot 27, five years after January 15, 2002. Lot 27, were
included as among the lots to be partitioned, in the co-
ownership. Renato Villaruz presided the meeting, and when an
agreement was reached, Renato Villaruz prepared an agreement
of partition in his own handwriting. The plaintiff and defendant,
all the brothers and sisters signed the same.

Several months after the signing of Exh. 4, other siblings

including the plaintiff complained regarding the handwritten
partition agreement. She complained why she has no share in Lot
27.
Consequently on October 4, 2006, another meeting was held
and all the brothers and sisters including the plaintiff and
defendant were present except Julieta Villaruz. The meeting was
held also in Estancia, Iloilo, presided again by Renato Villaruz.
As a result of that meeting, another agreement was reached. The
agreement was in writing, prepared by Renato Villaruz and
signed by co owners to include the plaintiff and defendant. In the
said meeting, plaintiff was given a share of 3,692 square meters,
in Lot 27, while defendant was given 1,500 square meters in the
same lot. This agreement prepared by Renato Villaruz, were
signed by all parties as shown in Exh. 21.  Plaintiff Edith
Tababa, signed as shown in Exh. 21-A-1. (position paper of the
defendant page 5-8)
 31

Petitioner also testified thru her affidavit how these partition

agreements were signed not only by the respondent but by all the brothers

and sisters of the petitioner and the respondent. Paragraphs 21, 22, 23, 24

and 25 of the affidavit of the petitioner states:

“21. Sometime in 2003 and 2004 my brothers and sisters

have started complaining and asking that our entire properties
shall now be partitioned among us. As a consequence, on July
17, 2004 my mother and all of us my brothers and sisters to
include the plaintiff Editha Tababa, met at Basnigan Restaurant
also located in Bgry. Villa Panian, Estancia Iloilo to discuss and
agree on the partition of our properties. 

22. The meeting started at about 10:00 o'clock in the

morning and ended at late afternoon and in the last stage of the
meeting, an agreement was reached as to our respective shares.
Our brother Renato Villaruz who is based in Negros Occidental
assisted by Elnora Villaruz Delgado, (sister) prepared a written
agreement in his own handwriting enumerating our respective
names, our respective shares, and the sublots appertaining to our
shares. This agreement is found in Annex A of my Answer to the
Complaint filed in the above captioned case and now marked as
Exhibit 4.

23. As per agreement, my total share is 1.8 hectares, to be

taken from various lots namely Lots 30, Lot l2, Lot 27 and Lot
53.

24.In the said Agreement marked Exh. 4, I signed there in

the name Elena Barba because I was able to marry Mr. Barba
after my first husband, Mr. Sorilla died abroad.

25. In the same document my sister the plaintiff Editha

Tababa will receive 2.5 hectares to be taken from Lot 65 and Lot
61. My other brothers and sisters also got their shares, from other
lots. All of us, including my mother, and Editha Tababa, signed
the said agreement.” (p. 17 of the paper of the defendant)

Also Renato Villaruz, the brother of the petitioner and the respondent

through his affidavit, attached to petitioner’s Position Paper testified on how

the partition agreement (to include lot 27) was entered into during the

meetings on July 17, 2004 and that on October 4, 2006 respectively.

 32

According to Renato Villaruz as shown in his affidavit:

“7. As my brothers and sisters wanted to know already

what are their shares, the names of the sublots, and where are
they located, they asked me to schedule a meeting among all of
us. Thus we held a meeting on July 17, 17, 2004, with our
mother and all of us present. The meeting was held at Punot
Restaurant, Villa Panian, Stancia, Iloilo. 

8. The meeting started in the morning. We took lunch

there, and in the afternoon, an agreement was reached as to the
sharing of the parties, and the share of our mother. The following
are the share of the parties, as indicated by the sub lots number: 

NAME OF HEIRS              SHARE OF LOTS

Alfredo Villaruz - 2.500 Lot 8 & 49

Eva Junsay - 2.000 Lot 30 & Lot 53
Eduardo Villaruz - 3.000 Lot 8 & 65
Editha Tababa - 2.500 Lot 65 & 61
Electa Estandarte - .700 Lot 30
Renato Villaruz - 2.500 Lot 65 & 61
Elena Barba - 1.800 Lot 30, 12, 27 & Lot 53
Elnora V. Delgado - 2.500 Lot 65, 61 & 62
Julieta Villaruz - 1.5506 Lot 30 & 53
8,300 7,206
Perla - .500

Kiaw - .300
____________________
19.8506
      
9. In the aforementioned agreement, the total share of
Editha Tababa is 2.5 hectare to be taken from Lots 65 and 61,
while the total share of Elena Sorilla (Barba) is 1.8 has., to be
taken from Lots 3, 12, 27 and 53.

10. I prepared a written agreement in my own handwriting,

indicating the names of my sisters and brothers, and that of my
mother, and opposite to their names, are their shares and the lot
numbers. Attached is a copy of the said partition agreement
dated July 17, 2004 which I prepared marked as Annex A of this
affidavit. 

11. All my brothers and sisters signed the said agreement,

including Editha Tababa and Elena Villaruz Sorilla although in the
case of Elena Villaruz, she signed as Elena Barba because before
she got married, to a certain Barba and she used that surname.
The signature of Editha Tababa is shown per Annex A-1, and the
 33

signature of Elena Sorilla (Barba) is shown in Annex A-2 of the

attached agreement. 

12. During that meeting on July 17, 2004, never did

Editha Sorilla ever brought to our attention nor discussed in the
meeting that she already bought Lot 27 from our mother nor did
she ever call our attention that Elena Sorilla signed a document
that Elena Sorilla will vacate after five years from January 15,
2001 or until May 15, 2005, on the said Lot 27.

13. During the said meeting, our mother Julieta Villaruz

never said she already sold Lot 27 to Editha Tababa. In fact
when portion of Lot  27 went as the share of Elena Sorilla,
Editha Tababa agreed to it without objections. 

14. However several months after that meeting, several of

my siblings complained and will not again agree as to the sharing.
In particular, Editha Tababa complained why she has no share to
Lot 27. Consequently another meeting was held on October 4,
2006, where all of the siblings attended except our mother. In the
said meeting, another sharing arrangement and agreement was
entered upon.

15. In this  new agreement, Editha Tababa will get a total

share of 22,000 square  meters, and these will be taken from Lot
65 with an area of 5,184 square meters, Lot 62 with an area of
8,961 square meters, Lot 61 with an area of 3,563 square meters,
at Lot 27, with an area of 3,692 square meters. Attached is the
copy of the said agreement marked as Annex B, consisting of four
pages.  The signature of Editha Tababa  is marked as Annex  B-1
and the signature of Elena  Sorilla is Annex B-2. 

16. Again in that meeting, Editha Tababa never complained

nor alleged that Lot 27 is hers and that  there was an agreement
that Elena Sorilla  will vacate Lot 27. 

RTC Br. 66 committed reversible error when he ignored these

evidence.

As proven by the partition agreement it would show that the petitioner

has a share in Lot 27. The result of that meeting on July 17, 2004 resulted

into a sharing agreement as shown as follows:

NAME OF HEIRS          SHARE OF LOTS

Alfredo Villaruz - 2.500 Lot 8 & 49

 34

Eva Junsay - 2.000 Lot 30 & Lot 53

Eduardo Villaruz - 3.000 Lot 8 & 65
Editha Tababa - 2.500 Lot 65 & 61
Electa Estandarte - .700 Lot 30
Renato Villaruz - 2.500 Lot 65 & 61
Elena Barba - 1.800 Lot 30, 12, 27 & Lot 53
Elnora V. Delgado - 2.500 Lot 65, 61 & 62
Julieta Villaruz - 1.5506 Lot 30 & 53
8,300 7,206
Perla - .500

Kiaw - .300
____________________
19.8506
(Underscoring ours)

Petitioner had categorically described how the aforementioned

agreement were entered into, by her and the respondent, For emphases

paragraphs 18 and 19 of the Answer dated October 16, 2009, (Par. 21 and

22 of the Amended Answer dated July 8, 2013) of the defendant states:

“18. In 2004, plaintiff, defendant, their brothers and

sisters and their mother Julieta Villaruz who are all heirs of
Alfredo Villaruz, held a meeting for the purpose of discussing
the estate of their parents in order to arrive an amicable
settlement as to what will be the properties that will appertain
to the respective heirs. The meeting was held in Estancia,
Iloilo and as a consequence, an agreement was entered into
signed by all the heirs of Alfredo Villaruz including the
plaintiff, the mother of the plaintiff and the defendant herself
assigning the ownership of Lot 27 of the defendant. Attached
is the machine copy of the said agreement indicating the share
of the defendant which are Lots 30, 12, and 53 duly executed
and signed by all the heirs including the plaintiff marked as
Annex A and made as an integral part herein.

19. Thus with the admission of the plaintiff in the said

agreement that Lot 27 is the share of the defendant, plaintiff’s
claim of ownership and the right to recover the property from
the defendant described as Lot 27 PSU 76870 is without legal
basis, and should fail.” (Underscoring ours)

If respondent is really, the sole owner of Lot 27 by reason of the Deed

of Sale marked Exhibit A why will she attend the partition meeting on July
 35

17 2004 and on October 4, 2006 together with her brothers and sisters and

there affixed their respective signatures in these documents where she shared

the ownership of Lot 27?

If Lot 27 was already the share of Julieta Villaruz when the Deed of

Sale was executed on June l8, l992, why did she and all her children enter

into the said Agreement on July l7, 2004, to partition Lot 27?

If the estate was already partitioned , as opined by the lower court,

why will respondent and all her brothers and sisters again met on October 4,

2006, and signed the second Agreement marked Exh. 21?

True these Agreements were handwritten and unnotarized but in one

case, the Supreme Court gave evidentiary weight to the letters written by

Meralco officers, acknowledging the ownership of a property in favor of the

respondents Deloys, even though those letters are not notarized:

“Evidently, by these two documents, MERALCO

acknowledged that the owners of the subject land were the
Deloys. It is clear as daylight. The first letter was written barely
four (4) months after the deed of sale was accomplished. As
observed by the CA, MERALCO never disputed the
declarations contained in these letters which were even marked
as its own exhibits. Pursuant to Section 26, Rule 130 of the
Rules of Evidence, these admissions and/or declarations are
admissible against MERALCO.

SEC. 26. Admissions of a party – The act, declaration, or

omission of a party as to a relevant fact may be given in
evidence against him.

In Heirs of Bernardo Ulep v. Ducat,24 it was written, thus:

x x x Being an admission against interest, the documents

are the best evidence which affords the greatest certainty of the
facts in dispute. The rationale for the rule is based on the
presumption that no man would declare anything against
himself unless such declaration was true. Thus, it is fair to
presume that the declaration corresponds with the truth, and it is
 36

his fault if it does not.

Guided by the foregoing rules and jurisprudence, the

Court holds that the letter and the internal memorandum
presented, offered and properly admitted as part of the evidence
on record by MERALCO itself, constitute an admission against
its own interest. Hence, MERALCO should appropriately be
bound by the contents of the documents.1âwphi1 (Manila
Electric vs. Heirs of spouses Dionisio Deloy G.R. No. 192893,
June 5, 2013)

D. INSTEAD OF DISMISSING THE CASE OF UNLAWFUL

DETAINER, RTC BR. 66 , ERRED IN ORDERING THE
EJECTMENT OF PETITIONER FROM THE PREMISES,
AND IN THE PROCESS AFFIRMED THE MCTC
DECISION ORDERING THE EJECTMENT OF THE
PETITIONER.

For respondent to eject petitioner under Rule 70 Section 1 of the

Revised Rules of Court she has to establish and prove that, petitioners’

possession of the property, shall be by virtue of a contract, not simply to

stipulate that petitioner is allowed to stay longer in the premises.

For unlawful detainer to be present, the complaint must alleged that

petitioner took possession of Lot 27 by virtue of a contract or for that matter

by virtue of the Agreement mark Exhibit D, and not by simply proving that

petitioner continued to stay in possession of the property purportedly by

reason of the Agreement mark Exhibit D. In the complaint there was no

allegation that petitioner took possession of a portion of Lot 27 by virtue of

any contract.

It was clearly proven by evidence, that petitioner took possession of

that portion of Lot 27 by reason of the fact that she is the co-owner of the

land in question, she being an heir. In fact, respondent herself in her judicial

affidavit, admitted that petitioner was already in possession of Lot 27, and
 37

has a building already standing thereon, before the aforementioned

Agreement mark Exhibit D was signed. Quoting respondent in her judicial

affidavit:

“Q30. - What is the present nature of that property?

A 30. – It had always been a commercial property, Sir

and Elena Sorilla had built many structures on the
property, had it rented. Her NAZZ restaurant which was
already existing at the time of the execution of our
agreement still continue to function profitably even until
now.” (Underscoring) (Please see plaintiff’s affidavit
attached to her position paper)

Even the MCTC Estancia, found that petitioner was already in

possession of the land in question, at the time when Julieta Villaruz,

purportedly executed a sale in favor of the respondent. According to the

lower court:

“PLANTIFF herein falls within the purview of a vendee in

whose favour a property was sold. Despite the sale by their
mother Julieta, she was not able to enjoy the benefit of
possessing the property on account of the fact that the
defendant was in possession thereof at the time of the sale.”
(Decision of the lower court page 6 )

As even found by MCTC Estancia, in its Decision dated September 3,

2015, when the so called Deed of Sale was executed on June 18, 1992

(Exhibit A), the respondent was not able to take possession of the property,

because as petitioner was already in possession of the property in question,

long before the date of the Agreement dated January 15, 2002.(Exh. D)

In explaining the concept of unlawful detainer, the Supreme Court in

the case of Jose vs. Alfuerto et, al. G.R. No. 169380, November 26, 2012

said:

“Unlawful detainer is a summary action for the

 38

recovery of possession of real property. This action may be

filed by a lessor, vendor, vendee, or other person against
whom the possession of any land or building is unlawfully
withheld after the expiration or termination of the right to
hold possession by virtue of any contract, express or implied.
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. However, the defendant’s possession became illegal
when the plaintiff demanded that the defendant vacate the
subject property due to the expiration or termination of the
right to possess under the contract, and the defendant refused
to heed such demand. A case for unlawful detainer must be
instituted one year from the unlawful withholding of
possession. The allegations in the complaint determine both
the nature of the action and the jurisdiction of the court. The
complaint must specifically allege the facts constituting
unlawful detainer. In the absence of these allegations of
facts, an action for unlawful detainer is not the proper remedy
and the municipal trial court or the MeTC does not have
jurisdiction over the case. (Underscoring ours )

In the case at bar, respondents’ complaint never alleged that petitioner

took possession of the property by virtue of the Agreement marked Exhibit.

Likewise she failed to prove that petitioner comes into possession of the lot

in question by virtue of the Agreement (Exh. D). On the contrary, petitioner

by preponderance of evidence, was able to prove that she took possession of

Lot 27, as heir. Petitioner never took possession of the property because of

tolerance or that she was permitted to do so by the respondent.

RTC Br. 66, ignored the unmistakable fact, that the instant case, does

not constitute unlawful detainer. If the respondent wanted to recover or get

the possession of the land in question from the petitioner, her possible

remedy is not an action for unlawful detainer. In fact, such wrongful

remedy was raised as a defense in the Amended Answer of the petitioner,

particularly paragraphs 13 and 14 to wit:

 39

“13. Plaintiff has no cause of action against the

defendant. Plaintiffs complaint is not one of unlawful detainer
but one for specific performance, or enforcement of a contract
(referring to the Agreement attached as Annex D to the
complaint;

14. Cases of specific performance or enforcement of

contract, is within the exclusive jurisdiction of the Regional
Trial Court and the Honorable Court has no jurisdiction over
the subject matter of the present case.

In the case of Fe Quijano, vs. Atty. Daryl Amante, G.R. No. 164277,

October 8, 2014, as earlier cited, petitioner Fe Quijano went to the Supreme

Court questioning the decision of the Court of Appeals when the latter,

dismissed the complaint for unlawful detainer, ratiocinating, that respondent

Atty. Darryl Amante was either a co-owner or an assignee holding the right

of possession over the disputed property.

In affirming the Decision of the Court of Appeals, the Supreme Court

said:

x x x A requisite for a valid cause of action of unlawful

detainer is that the possession was 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 lawful possession must then be established. With the
averment here that the respondent possession was by mere
tolerance of the petitioners, the acts of tolerance must be proved
for bare allegation of tolerance did not suffice.

xxx

Considering that the allegation of the petitioners’

tolerance of the respondents possession of the disputed property
was not established the possession could very well be deemed
illegal from the beginnings. In that case the action for unlawful
detainer has to fall. (Underscoring ours) (Fe Quijano vs. Daryl
Amante G.R. No.164277, October 8, 2014)

In the instant case, considering the undisputed fact that the possession
 40

of the disputed property, by petitioner, was not by tolerance, nor by virtue of

the Agreement marked Exh. D, the remedy of unlawful detainer resorted to

by respondent must fail.

In a more emphatic language the Supreme Court in Fiorello Jose vs.

Roberto Alfuerto, et. al., G.R. No. 169380 November 26, 2012, held:

“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
property remedy and should be dismissed.”

Respondent, if indeed she has a valid claim of ownership, has other

options or modes of recovering Lot 27, but not thru a summary action of

unlawful detainer. In the language of the Supreme Court in Fe Quijano vs.

Atty. Daryll Amante G.R. No.164277, October 8, 20l4:

“Regardless, the issue of possession between the parties

will still remain. To finally resolve such issue, they should
review their options and decide on their proper recourses. In
the meantime , it is wise for the Court to leave the door open to
them in that respect. For now therefor, this recourse of the
petitioner has to be dismissed.

There is no estoppel

MCTC Estancia, in his decision and as affirmed by RTC Br. 66, cited

and invoked the doctrine of estoppel citing, Article 1431 of the New Civil

Code. The lower court said:

“On account of the sale by Julieta in favor of Editha

and the acknowledgement thereof by the defendant this Court
rules that plaintiff Tababa is the owner of Lot 27. As such
she has the superior right to possess the property.

Indeed the Agreement (exhibit D) has the effect of estoppel.

Article 1431 of the Civil Code on the subject of estoppel provides:

 41

“Through estoppel an admission or representation s

rendered conclusive upon the person making it and cannot be
denied or disprove as against the person relying thereon.

MCTC Estancia, again with due respect, made a mistake when he

applied the doctrine of estoppel. For estoppel to be present, there are three

essential elements:

“29. Elements of estoppel in pais as related to the party

claiming the estoppel. – The essential elements of an
equitable estoppels as related to the party claiming the
estoppels are:

(1) Lack of knowledge and of the means of knowledge

of the truth as to the facts in question:
(2) Reliance upon the conduct of the party stopped; and
(3) Action based thereon of such character to change his
position prejudicially.”
(19 Am. Jur. 644-643) (Cited in Francisco Revised Rules
of Court page 52 Vol. 7 Part 2, l99l Ed.).
(Underscoring ours)

Authorities on evidence, said that the doctrine of estoppel does not

extend in favor of those who are charged or have noticed of the true facts

and circumstances of the facts where estoppel is sought to be applied, in

connection with the representation as basis for estoppel. In one case, decided

by the Court of Appeals in Mercado et. al. vs. Abatayo et. al. 53 O.G. 2837 it

was held:

“The doctrine of estoppels does not extend in favor

of those who are charged with notice of the true fact or
facts, circumstances, which through diligence and
ascertainment, could have unerringly disclosed those
true facts in connection with which the representation
was made, and, if he fails to do so or intentionally
closes his eyes to the ascertainment of the ultimate
truth, he cannot later on be heard to say that he was led
to believe what has been represented.” (Underscoring
ours)
 42

In the case at bar, respondent was never mislead by the petitioner

when the latter acted as a witness to the deed of sale and when said

defendant signed the Agreement that she will vacate the premises after five

(5) years. The claim of the respondent that she is the owner of Lot 27, was

never based on the actuation or representation of the petitioner.

Respondent had claimed ownership of Lot 27, based on the simulated

Deed of Definite Sale which was signed by Julieta Villaruz in favor of the

respondent. All the while, respondent knew that Julieta Villaruz is not the

exclusive owner of Lot 27 and when the so called Deed of Definite Sale was

signed, the entire estate of Alfredo Villaruz, was not yet partitioned nor

settled. Consequently, respondent cannot claim that she has no knowledge

or that she does not have the means of knowledge of the truth regarding the

ownership of the lot in question.

It is true that petitioner was a witness to the said Deed of Definite Sale

between Julieta Villaruz and respondent. However, being a mere witness to

the deed of sale cannot be considered as conduct of estoppel. A perusal of

the said deed of sale would show that petitioner is a mere instrumental

witness, and there is no showing in the said deed of sale that she expressed

her conformity to the said sale. The Supreme Court explained the distinction

between a mere instrumental witness and one who gave conformity to the

deed of sale.

“Distinction between mere instrumental witnesses and

one who give conformity thereto. A distinction should be
made, as indeed there is, between one who signs a document
merely as an instrumental witness, and one who affixes his
signature as proof of his consent to, approval of, and
conformity with, the contents of the deed of the document.
 43

The formerly simply attests that the party or parties to the

instrument signed by the same in his presence, so that he is
frequently referred to as a “Witness to the signature” and he is
not bound to know or be aware of the contents of the
document; while the latter is not only presumed to know the
subject matter of the deed, but more importantly, binds himself
thereto as effectively as the party himself would be bound
thereby. (Philippine National Bank vs. Court of Appeals, 98
SCRA 207, Herrera Remedial Law Vol. VI, page 47 1999 Ed.)
(Underscoring ours)

The MCTC Estancia, in his erroneous application of the doctrine of

estoppel cited the so called Agreement dated January 15, 2002 purportedly

signed by Editha Tababa the respondent and Elena Sorilla the petitioner. The

signing of the said agreement was already explained by the petitioner in her

position paper as well as in her affidavit attached to her position paper. As

proven by the petitioner, she signed the said Agreement dated January 15,

2002 marked Exhibit D by mistake. The circumstance upon which the said

agreement was prepared and why it was signed by petitioner was explained

by her in her affidavit particularly paragraphs 17, 18 and 19 to wit:

“17. In January of 2002, Editha Tababa the plaintiff

commented regarding my possession of a portion of Lot 27, and
the building which I constructed alongside the road which I used
as a restaurant known as NAZZ. She asked me that since all our
properties have not been finally partitioned, and she might have a
share in Lot 27 as one of the heirs, it may happen that during our
partition her share might fall on a portion of Lot 27, where my
building NAZZ is standing.

  18. Since she is my sister and to avoid bad feelings and

relationship with her I told her that in case a portion of Lot 27
will go her as her share I am willing to vacate portion of the
property. I further told her that I am willing to sign a document
so that she will not complain. Consequently she prepared a
document which in substance appeared to be our agreement that I
will vacate the property after 5 years from the date I signed the
said agreement. 
 44

19. I did not bother to read word for word, and referred
to any lawyer the agreement that I signed because after all I knew
that the lot where my restaurant was standing is located in the
estate of my father and all of us, heirs of Alfredo Villaruz Sr.,
have not yet partitioned the property. Therefore, although I signed
the said agreement, it was conditioned that Lot 27 will be the
share of my sister, during the partition. It turned out Lot 27
became a contested lot.”

The evidence of the petitioner that she signed the said Agreement by

mistake was not rebutted by the respondent. It is not uncommon that a

party to a document sometimes signed a document or contract by mistake.

However, when the issue of error or mistake is raised, evidence is allowed to

show the real intention of the parties to a contract under the parole evidence

rule. Thus:

The parol evidence rule considers the document as the

embodiment of the agreement of the parties. However, the rule is
now explicit that the agreement maybe modified, explained, or
added if any of the exception to the rule, i.e., (a) intrinsic
ambiguity, mistake, or imperfection in the written agreement x x x
(National Railways vs. CFI of Albay etc. 83 SCRA 569)
(Permentilla et. al. vs. Ambray, 10 CAR (2) 72.

While ordinarily a party cannot submit evidence to vary its

written contract, there is a recognized exception in those cases,
where the failure of the written agreement to express the true facts
has been actually pleaded (Rule 130 Sec. 7,(now) (Santiago vs.
Realty Investment, CA G.R. 5211-R, March 10, 1951)

It is an admitted fact, that respondent is the sister of the petitioner and

the daughter of Julieta Villaruz and as such respondent cannot claim that she

was misled by the petitioner as to who is the owner of Lot 27. It is also

undisputed that Lot 27, is a titled property in the name of the parents of the

plaintiff. As respondent cannot claim that she was misled by the petitioner
 45

and no evidence has been shown that indeed she was misled, equitable

estoppel cannot apply. As held by the Supreme Court:

“An equitable estoppel can only be invoked by one who

is in a position to be misled by the misrepresentation with
respect to which the estoppel is invoked; and under
circumstances where damage would result to him from the
adoption by the person stopped of a position different from that
which has been held out to be true.” (Cristobal, et. al. v. Gomez,
50 Phil. 810) Cited in Francisco Rules of Court page 54, Vol.
VII, Part 2 1991 Edition) (Underscoring ours)

MCTC Estancia ignored the basic rule, that to invoke estoppel, its

essential elements, should be present. One such essential element is the lack

of knowledge or of the means of knowledge of the truth as to the facts in

question. The Supreme Court in Kalalo vs. Luz 34 SCRA 337 and Mijares

vs. CA G.R. No. 113558, April 18, 1997 explained the essential elements of

estoppels:

“(1) Lack of knowledge or of the means of knowledge of

the truth as to the facts in questions; (2) reliance in good faith,
upon the conduct or statements of the party to be stopped; and
(3) the action or inaction based thereon of such character as to
change the position or status of the party claiming the
estoppels, to his injury, detriment or prejudice. (Herrera,
Remedial Law p. 43 Vol. VI, 1999 Edition) (Underscoring
ours)

Before the petitioner signed the said Agreement she was already in

possession of the lot in question. In other words, it was not the agreement

that enabled the petitioner to take possession of the said property.

MCTC Estancia, in his decision also reasoned out, that petitioner

allegedly misrepresented herself when she acknowledged in the agreement

the ownership of the respondent over Lot 27. According to MCTC Estancia:

“In the case at BAR the first element of estoppel is obtaining.

Defendant misrepresented herself when she acknowledged in
 46

the Agreement the ownership of the plaintiff over Lot 27 and

thus allowing her to extend her stay and used of the property
and then later claiming lack of knowledge regarding the
contents of the agreement. (Decision of the lower court page
10)

As previously argued, estoppel is not applicable because, petitioner

was already occupying the property in question, long before the signing of

the Agreement.

MCTC Estancia, committed a reversible mistake in applying the

jurisprudence in the case of Data Lift Movers vs. Belgravia Realty G.R. No.

144268, dated August 30, 2006. The case of Data Lift Movers involved a

lease contract and Data Lift Movers took possession of the property in

question because of the Lease Contract. When Data Lift Movers went to

the Supreme Court questioning his ejectment from the premises he argued

that the lease contract is illegal. The Supreme Court concluded he was in

estoppel.

In the case at bar, petitioner took possession of the property in

question as an heir and co-owner and long before the execution of the

Agreement dated July 17, 2004.

Granting there was estoppel on

the part of the petitioner, when
the Deed of Sale dated January
15, 2002 was executed, the said
estoppel can no longer apply
after respondent signed the two
handwritten partition
agreements affirming the co
ownership of petitioner and
respondent on Lot 27.

It is shown in the records, that respondent signed the partition

 47

handwritten Agreement dated July 17, 2004 marked Exhibit 4 and the

handwritten Agreement dated October 4, 2006 marked Exhibit 21. In the

two agreements, Lot 27 was shared by the petitioner and the respondent,

and not exclusively owned by the latter.

Respondent never disputed nor rebutted the two agreements or the

claim of the petitioner that the latter is a co-owner of Lot 27. As the two

handwritten agreements were respectively executed on July 17, 2004 and on

October 4, 2006, the so called estoppel based on the Deed of Sale dated

January 15, 2002 has ceased to have legal effect.

Stated otherwise, if the respondent was made to believe that she is the

exclusive owner of Lot 27, when petitioner signed as witness on the Deed

of Sale dated January 15, 2002, she (respondent) subsequently affirmed in

the two handwritten agreements that she and the petitioner are co owners of

the land in question.

If ever there was estoppel it is on the part of the respondent when she

signed the two Agreements.

D. THE LOWER COURT ERRED IN NOT

AWARDING IN FAVOR OF THE PETITIONER, THE
VALUE  OF THE IMPROVEMENTS INTRODUCED OVER
THE PROPERTY IN QUESTION;

              It cannot be disputed that the construction of the restaurant Nazz, is

a useful expenses, because it is an improvement and it adds value to the land.

Thus: 

They are those that add value to the property (Aringo v.

Arenas, 14 Phil. 263) or increase the object’s productivity
(Valenzuela v. Lopez, 51 Phil. 279) or useful for the satisfaction
of spiritual and religious yearnings (Anacleto Gongon v.
Tiangco (CA) 36 O.G. 822] or give rise to all kinds of fruits.
 48

(Rivera v. Roman Catholic Archbishop of Manila, 40 Phil. 717)

          Petitioner was able to prove per her affidavit attached to her position

paper that she is a builder in good faith and that she is entitled to be

reimbursed of the value of her improvements. In her Affidavit  dated April

24, 2015, petitioner declared that: 

“40. When I constructed the building NAZZ in the

portion of Lot 27, that land is a worthless abandoned property,
and I have to introduced improvements there.

41. From the time I occupied the said portion of Lot 27, I
was able to construct several structures, namely the restaurant,
with living quarters inside, and about seven (7) cottages. The
total value of these structures is One Million Eight Hundred
Pesos (P1,800,000.00) as the fair market value of the
improvements.

42. If later on during the partition the parcel of land

where some of my improvements will go to Editha Tababa, I
shall be reimbursed of at least P1.8 Million Pesos.

     Evidently respondent did not refute nor deny the evidence of the

petitioner. As such builder in good faith, petitioner is entitled to the right of

retention until such time that respondent  shall pay petitioner the

improvements valued at P 1.8 M proven per petitioners’ affidavit. The

Supreme Court has upheld the right of retention even in ejectment cases: 

“In theory, and speaking of ordinary ejectment case,

petitioners maybe right; that is to say, if the lessee or occupant
has not built anything on the premises, payment of rent would
be a valid and satisfactory solution of the problem; but where
the occupant has built on the land, especially where said
building is substantial and valuable, the courts even in
ejectment cases are bound to take cognizance of said fact and
when they find that the construction or planting had been
effected in good faith, instead of dismissing the complaint and
suggesting to the parties to observe and follow the provisions of
Article 361 or Article 448 of the old and the new Civil Code of
the Philippines, respectively, and if they cannot agree, to file a
 49

new action, not only to enforce or defend the respective rights

of the parties but to assess the value of the land and of the
improvements as well, the courts in order to avoid multiplicity
of actions and to administer practical and speedy justice may, as
was done in this case, apply the provisions of the Civil Code
relative to builders specially since there is no question as to the
ownership of the land as shown by the certificate of title, and
the ownership of the buildings.”(Tayag, et. al. v. Yuseco, et. al.,
97 Phil 712,Herrera Remedial Law Vol. III). (Underscoring
ours) 

          It is disheartening to note that RTC Br. 66 simply brushed aside

petitioners’ claim.

APPLICATION FOR TEMPORARY RESTRAINING

ORDER AND/OR PRELIMINARY INJUNCTION

Petitioner inexorably is in possession of the property in

question, with her restaurant standing thereon, currently operating,

and with lodging houses, open for business. She has considerably

introduced vast improvements on the premises. She is in possession

of the property as an heir or as co-owner.

The lot in question is not even titled in the name of the

respondent, and the latter even acknowledged that petitioner owned a

portion of Lot 27, as her share in the co-ownership. RTC Br. 66, has

also deleted all awards of damages to include damages in the form of

rentals or for the use of the property as per Resolution dated August

13, 2019.

As clearly the complaint filed by the respondent before MCTC

Estancia is not one of unlawful detainer, petitioners’ appeal in this

instant petition should be heard and resolved on the merits before

she could be dispossessed.

 50

Petitioners came to know that the moment respondent got the

possession of the lot in question including her restaurant, she will

have portions of the premises demolished and the business stopped.

Unless restrained thru a Temporary Restraining Order, or thru a

preliminary injunction, petitioner will suffer grave and irreparable

damages as her improvements introduced in her restaurant shall be

demolished if not removed, her customers will stop patronizing her

restaurant thinking that it was already taken over, her employees like

her cook and waiters have to leave and moved elsewhere, if

respondent successfully dispossessed the petitioner during the

pendency of appeal.

In fact, respondent has already filed before RTC 66, a Motion

for Execution dated August 13, 2019, praying before the Regional

Trial Court for the execution of the Decision of RTC 66 as modified

by the Resolution dated August 13, 2019. Attached is a copy of the

said Motion for Extension.

Petitioner, as applicant, is entitled to the relief demanded, and

part of such relief is to restrain , or enjoin RTC Br. 66, and MCTC

Estancia, to include respondent from executing or ejecting the

petitioner from the premises.

Petitioner is willing and ready to post a bond in such amount

as maybe fixed by the Honorable Court conditioned that in the event

petitioner is not entitled to the injunction, the bond should answer for

the damage suffered by the respondent by reason of the injunction or

 51

TRO.

WHEREFORE, upon the filing of this petition, a Temporary

Restraining Order for 60 days be issued, and thereafter a Writ of

Preliminary Injunction, restraining the RTC Br. 66, the respondent

or any other person acting for and in their behalf, from implementing

or executing the Decision dated February 8, 2019, and the Resolution

dated August 16, 2019 of RTC Br. 66, and from ejecting petitioner

from Lot 27, until the merits of the instant appeal is decided. After

hearing, or after such time that respondent could answer the instant

petition, judgment be rendered setting aside the Decision dated

February 8, 2019 and the Resolution dated August 19, 2019 of RTC

Br. 66, Barotac Viejo, Iloilo, and ordering the dismissal of the

Complaint filed in MCTC Estancia.

Petitioner prays for such other relief and remedies as maybe

just and equitable under the premises.

Petitioner pray for such other reliefs and remedies as maybe

just and equitable under the premises.

Iloilo City for Cebu City, Philippines, November 4, 2019.

HECTOR P. TEODOSIO
Counsel for the Petitioner
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. VI-0000979
Tel. Nos. (033) 3202977 (033)5092734
E-mail add: heclaw@yahoo.com
 52

Received copy:

ATTY. EDWIN CATACUTAN

Counsel for the respondent
CATACUTAN LAW OFFICES
Suite 208, 2/F, Iloilo Casa Plaza,
Gen. Luna St., Iloilo City

By: _________________ Date: _______________

Regional Trial Court

Branch 66 Barotac Viejo, Iloilo
Civil Case No.2015-1096
entitled Edith Tababa vs. Elena Sorilla
By mail

EXPLANATION
(Pursuant to Section 11, Rule 13 of the Rules of Civil Procedure)

The foregoing Petition for Review is being served by mail the

Regional Trial Court Br. 66 Barotac Viejo, Iloilo and to the Honorable
Court personal service not being practicable due to distance.

HECTOR P. TEODOSIO

Fn:sorilla-petitionforreview
Dis/hpt/b-bing
 53

WHEREFORE, premises considered it is respectfully prayed

that judgment be rendered setting aside the Decisi on of RTC Br. 66

dated September 3, 2015, or in the alternative, declaring defendant as

builder in good faith, ordering to pay petitioner for the value of its

improvements in the amount of P1.8Million (or in the alternative to asses

and evaluate the improvements), with the right of retention until such

improvements are paid.

Petitioner pray for such other reliefs and remedies as maybe just and

equitable under the premises.

Iloilo City for Cebu City, Philippines, November _____ 2019.

HECTOR P. TEODOSIO
Counsel for the Petitioner
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. VI-0000979
Tel. Nos. (033) 3202977 (033)5092734
E-mail add: heclaw@yahoo.com

Received copy:

ATTY. EDWIN CATACUTAN

Counsel for the respondent
CATACUTAN LAW OFFICES
Suite 208, 2/F, Iloilo Casa Plaza,
Gen. Luna St., Iloilo City

By: _________________ Date: _______________

Regional Trial Court

Branch 66 Barotac Viejo, Iloilo
Civil Case No.2015-1096
 54

entitled Edith Tababa vs. Elena Sorilla

by mail

EXPLANATION
(Pursuant to Section 11, Rule 13 of the Rules of Civil Procedure)

The foregoing Petition for Review is being served by mail the

Regional Trial Court Br. 66 Barotac Viejo, Iloilo and to the Honorable Court
personal service not being practicable due to distance.

HECTOR P. TEODOSIO

Fn:sorilla-petitionforreview
Dis/hpt/b-bing
55