Section 1. Complaint in action for partition of real estate .

A person having the right to compel the partition of real estate may do so as provided in this Rule, setting forth in his complaint the nature and extent of his title and an adequate description of the real estate of which partition is demanded and joining as defendants all other persons interested in the property. Art. 1083. Every co-heir has a right to demand the division of the estate unless the testator should have expressly forbidden its partition, in which case the period of indivision shall not exceed twenty years as provided in article 494. This power of the testator to prohibit division applies to the legitime. Even though forbidden by the testator, the co-ownership terminates when any of the causes for which partnership is dissolved takes place, or when the court finds for compelling reasons that division should be ordered, upon petition of one of the co-heirs.

Art. 494. No co-owner shall be obliged to remain in the co-ownership. Each co-owner may demand at any time the partition of the thing owned in common, insofar as his share is concerned. Nevertheless, an agreement to keep the thing undivided for a certain period of time, not exceeding ten years, shall be valid. This term may be extended by a new agreement. A donor or testator may prohibit partition for a period which shall not exceed twenty years. Neither shall there be any partition when it is prohibited by law. No prescription shall run in favor of a co-owner or co-heir against his co-owners or co-heirs so long as he expressly or impliedly recognizes the co-ownership.

Two Principal Issues An action for partition, which is typically brought by a person claiming to be the owner of a specified property against a defendant or defendants whom the plaintiff recognizes to be his co-owners, may readily be seen to simultaneously present two principal issues. Firstly, there is the issue of whether the plaintiff is indeed a co-owner of the property sought to be partitioned. Secondly, assuming that the plaintiff successfully hurdles the first issue, there is the secondary issue of how the property is to be divided between the plaintiff and the defendants, that is, what portion should go to which co-owner. Should the trial court find that the defendants do not dispute the status of the plaintiff as co-owner, the court can forthwith proceed to the actual partitioning of the property involved. In case the defendants assert in their Answer exclusive title in themselves adversely to the plaintiff, the court should not dismiss the plaintiffs action for partition but, on the contrary and in the exercise of its general jurisdiction, resolve the question of whether the plaintiff is co-owner or not. Should the trial court find that the plaintiff was unable to sustain his claimed status as co-owner, or that the defendants are or have become the sole and exclusive owners of the property involved, the court will necessarily have to dismiss the action for partition. This result would be reached, not because the wrong action was commenced by the plaintiff, but rather because the plaintiff having been unable to show co-ownership rights in himself, no basis exists for requiring the defendants to submit to partition the property at stake. If, upon the other hand, the court after trial should find the existence of co-ownership among the parties litigant, the court may and should order the partition of the property in the same action. Functionally, an action for partition may be seen to be at once an action for declaration of coownership and for segregation and conveyance of a determinate portion of the property involved. (CONCEPCION ROQUE vs. HON. INTERMEDIATE APPELLATE COURT, ERNESTO ROQUE, FILOMENA OSMUNDO, CECILIA ROQUE, MARCELA ROQUE, JOSE ROQUE and RUBEN ROQUE, August 30, 1988)

Prescription of Action

The action for partition of the thing owned in common does not prescribe. In the words of Article 494 of the Civil Code, each co-owner may demand at any time the partition of the thing owned in common, insofar as his share is concerned. No matter how long the co -ownership lasted, a co-owner can always opt out of the co-ownership, they cannot set up the defense of prescription of action for partition. An action to demand partition is imprescriptible or cannot be barred by laches. (Deiparine vs CA 299 SCRA 668) The property subject of the controversy is a parcel of land denominated as Lot 1938 of the TalisayMinglanilla Friar Lands Estate located in San Isidro, Talisay, Cebu. The lot was originally owned by Marcelo Deiparine. When he died, the subject lot was inherited by his wife and children. Manuel Deiparine took possession of Lot 1938-A and declared it in his name for taxation purposes. Upon his death, his heirs took possession of Lot 1938-A. Petitioners possession of the subject lot did not ripen into ownership for the reason that they possessed the subject lot only as trustees for the other co-owners. We sustain the respondent Courts findings that Manuel Deiparine, during his lifetime, did not by any express or implied act show that he was repudiating the co-ownership. Finally, the action for partition has not yet prescribed. An action to demand partition is imprescriptible or cannot be barred by laches. Each co-owner may demand at any time the partition of the common property.

But if the defendants show that they have previously asserted title in themselves adversely to the plaintiff and for the requisite period of time, the plaintiffs right to require recognition of his status as a co-owner has been lost by prescription and the court cannot issue an order requiring partitition. While the action for partition does not prescribe, the co-ownership does not last forever, since it may be repudiated by a co-owner. In such a case, the action for partition does not lie. What may be brought by the aggrieved co-owner is an accion reivindicatoria or action for recovery of title and possession. That action may be barred by prescription. Section 2. Order for partition and partition by agreement thereunder. If after the trial the court finds that the plaintiff has the right thereto, it shall order the partition of the real estate among all the parties in interest. Thereupon the parties may, if they are able to agree, make the partition among themselves by proper instruments of conveyance, and the court shall confirm the partition so agreed upon by all the parties, and such partition, together with the order of the court confirming the same, shall be recorded in the registry of deeds of the place in which the property is situated.

Two Phases of Partition and Accounting Suit The first stage of an action for judicial partition and/or accounting is concerned with the determination of whether or not a co-ownership in fact exists and a partition is proper, that is, it is not otherwise legally proscribed and may be made by voluntary agreement of all the parties interested in the property. This phase may end in a declaration that plaintiff is not entitled to the desired partition either because a co-ownership does not exist or a partition is legally prohibited. It may also end, on the other hand, with an adjudgment that a co-ownership does in truth exist, that partition is proper in the premises, and that an accounting of rents and profits received by the defendant from the real estate in question is in order. In either case, whether the action is dismissed or partition and/or accounting is decreed, the order is a final one and may be appealed by any party aggrieved thereby. The second stage commences when the parties are unable to agree upon the partition ordered by the court. In that event, partition shall be effected for the parties by the court with the assistance of not more than three (3) commissioners. This second phase may also deal with the rendition of the accounting itself and its approval by the Court after the parties have been accorded the opportunity to be heard thereon, and an award for the recovery by the party or parties thereto entitled of their just shares in the rents and profits of the real estate in question. Such an order is, to be sure, also appealable.

Final Order of Partition Appealable A final order of decreeing partition and accounting is final and may be appealed by the party aggrieved thereby. This, notwithstanding, that further proceedings will still have to take place in the Court i.e., the accounting will still have to be rendered by the party required to do so, it will be ventilated and discussed by the parties and will eventually be passed upon by the Court. It is entirely possible that the Courts disposition may not sit well with either party. In either case, the Courts adjudication on the accounting is without a doubt a final one, it would finally terminate the proceedings thereon and leaving nothing more to be done by the Court on the merits of the issue. Thus, in the decision ordering partition, the execution of that part of the judgment which will not necessitate any further proceeding may be enforced. It has been held that execution was entirely proper to enforce the defendants obligation to render an accounting and to exact payment of the money value of the plaintiffs shares.

Section 3. Commissioners to make partition when parties fail to agree . If the parties are unable to agree upon the partition, the court shall appoint not more than three (3) competent and disinterested persons as commissioners to make the partition, commanding them to set off to the plaintiff and to each party in interest such part and proportion of the property as the court shall direct. Section 4. Oath and duties of commissioners. Before making such partition; the commissioners shall take and subscribe an oath that they will faithfully perform their duties as commissioners, which oath shall be filed in court with the other proceedings in the case. In making the partition, the commissioners shall view and examine the real estate, after due notice to the parties to attend at such view and examination, and shall hear the parties as to their preference in the portion of the property to be set apart to them and the comparative value thereof, and shall set apart the same to the parties in lots or parcels as will be most advantageous and equitable, having due regard to the improvements, situation and quality of the different parts thereof. Section 5. Assignment or sale of real estate by commissioners . When it is made to appear to the commissioners that the real estate, or a portion thereof, cannot be divided without prejudice to the interests of the parties, the court may order it assigned to one of the parties willing to take the same, provided he pays to the other parties such amount as the commissioners deem equitable, unless one of the interested parties asks that the property be sold instead of being so assigned, in which case the court shall order the commissioners to sell the real estate at public sale under such conditions and within such time as the court may determine. Section 6. Report of commissioners; proceedings not binding until confirmed. The commissioners shall make a full and accurate report to the court of all their proceedings as to the partition, or the assignment of real estate to one of the parties, or the sale of the same. Upon the filing of such report, the clerk of court shall serve copies thereof on all the interested parties with notice that they are allowed ten (10) days within which to file objections to the findings of the report, if they so desire. No proceeding had before or conducted by the commissioners shall pass title to the property or bind the parties until the court shall have accepted the report and rendered judgment thereon. Sec. 7. Action of the court upon commissioners report. Upon the expiration of the period of ten (10) days referred to in the preceding section, or even before the expiration of such period but after the interested parties have filed their objections to the report or their statement of agreement therewith, the court may, upon hearing: accept the report and render judgment in accordance therewith; or for cause shown, recommit the same to the commissioners for further report of facts; or set aside the report and appoint new commissioners; or accept the report in part and reject it in part; and may make such order and render such judgment as shall effectuate a fair and just partition of the real estate, or of its value, if assigned or sold as above provided, between the several owners thereof

Sec. 8. Accounting for rent and profits in action for partition. In an action for partition in accordance with this Rule, a party shall recover from another his just share of rents and profits received by such other party from the real estate in question, and the judgment shall include an allowance for such rents and profits. Sec. 9. Power of guardian in such proceedings.

The guardian or guardian ad litem of a minor or person judicially declared to be incompetent may, with the approval of the court first had, do and perform on behalf of his ward any act, matter, or thing respecting the partition of real estate, which the minor or person judicially declared to be incompetent could do in partition proceedings if he were of age or competent. Sec. 10. Costs and expenses to be taxed and collected. The court shall equitably tax and apportion between or among the parties the costs and expenses which accrue in the action, including the compensation of the commissioners, having regard to the interests of the parties, and execution may issue therefor as in other cases. Sec. 11. The judgment and its effect; copy to be recorded in registry of deeds. If actual partition of property is made, the judgment shall state definitely, by metes and bounds and adequate description, the particular portion of the real estate assigned to each party, and the effect of the judgment shall be to vest in each party to the action in severalty the portion of the real estate assigned to him. If the whole property is assigned to one of the parties upon his paying to the others the sum or sums ordered by the court, the judgment shall state the fact of such payment and of the assignment of the real estate to the party making the payment, and the effect of the judgment shall be to vest in the party making the payment the whole of the real estate free from any interest on the part of the other parties to the action If the property is sold and the sale confirmed by the court , the judgment shall state the name of the purchaser or purchasers and a definite description of the parcels of real estate sold to each purchaser, and the effect of the judgment shall be to vest the real estate in the purchaser or purchasers making the payment or payments, free from the claims of any of the parties to the action. A certified copy of the judgment shall in either case be recorded in the registry of deeds of the place in which the real estate is situated, and the expenses of such recording shall be taxed as part of the costs of the action

Sec. 12. Neither paramount rights nor amicable partition affected by this Rule. Nothing in this Rule contained shall be construed so as to prejudice, defeat, or destroy the right or title of any person claiming the real estate involved by title under any other person, or by title paramount to the title of the parties among whom the partition may have been made; nor so as to restrict or prevent persons holding real estate jointly or in common from making an amicable partition thereof by agreement and suitable instruments of conveyance without recourse to an action. Gochan and Sons Realty v. Caada 165 SCRA 207 Juan Jabutay was the owner, of Lot No. 6733, a 2.5-hectare parcel of unregistered land in Barrio Punta Princesa, Cebu City. August 11, 1939, Jabutay sold a one-half pro-indiviso portion of Lot No. 6733 to Eustaquio Paraiso. However, Jabutay continued to occupy Paraiso's one-half portion as lessee of Paraiso. 22 years later, on July 20, 1951, without informing Jabutay, Paraiso sold his one-half undivided portion to Vicente Caada, the estranged son-in-law of Jabutay. On July 31, 1951, Caada filed an action for partition against Jabutay to recover his one-half portion of Lot 6733. Civil Case No. R-1630 In a decision dated July 5, 1957, the trial court declared Caada and Jabutay co-owners of Lot 6733 and ordered that it be partitioned between them in equal parts. Jabutay appealed to the Court of Appeals where the appeal was docketed as CA-G.R. No. 22909-R. During the pendency of the appeal and without notice to Caada, Jabutay filed an application for registration of Lot 6733 in his name. On March 2, 1959, OCT No. 51 was issued to him. On April 22, 1959, he sold the entire Lot 6733 to Felix Gochan & Sons Realty Corporation, herein petitioner . Jabutay's OCT No. 51 was cancelled and TCT 19612 was issued to Gochan. ( TCT of Jabutay was free from any annotation) Upon discovering that Lot had been registered in Jabutay's name and sold to Gochan, Caada filed on April 30, 1959 an action against Jabutay and Gochan to annul the sale, cancel Gochan's TCT 19612, On February 12, 1962 Caada caused a notice of lis pendens to be annotated on Gochan's TCT No. 19612.

Court of Appeals in CA-G.R. No. 22909-R affirmed the decision of the trial court in the partition case (partition case) A motion for reconsideration on the C.As decision was filed praying for the substitution of Reyes as plaintiff in the partition case on the ground that Reyes acquired Canadas interest in the subject lot. This was ganted by the Appellate Court Reyes filed a motion for the execution of the judgment but it was denied by the trial court Reyes filed an ex parte motion in the C.A praying for the amendment of its resolution in the partition case so as to include Felix Gochan & Sons Realty Corporation as party-defendant. The appellate court granted the motion and ruled that a writ of execution may be issued against the petitioner. Reyes obtained an alias writ of execution The trial court ordered the partition of the properties upon approval of the commissioners report. Petitioner then filed this petition for review on certiorari on the ground that the court, in the partition case, has no jurisdiction over it.

HELD: Judgment rendered in the partition case is not binding upon the petitioner The Court of Appeals acted without jurisdiction when it issued its order changing the title of the partition case by impleading Gochan as an additional defendant long after its jurisdiction in the case had ceased. As the registered owner of Lot 6733, Gochan was not bound by the decision in Civil Case No. R-1630 for it was never summoned in the case and no notice of the pendency of the said case had been annotated on the vendor Jabutay's title (OCT No. 51 ) at the time Gochan purchased the lot. partition Therefore, when a case is commenced involving any right to lands registered under the Land Registration Law, any decision therein will bind the parties only, unless a notice of the pendency of such action is registered on the title of the land, in order to bind the whole world as well. The judgment which was rendered in Civil Case No. R-1630, and which was affirmed by the Court of Appeals on June 18, 1964 in CA-G.R. No 22909-R, did not bind Gochan because no notice of the pendency of said case was recorded in his vendor's (Jabutay's) title. Jabutay's title was clean and free from liens and encumbrances when Gochan purchased Lot 6733 on April 22, 1959. Gochan received a clean title too.

Sec. 13. Partition of personal property. The provisions of this Rule shall apply to partitions of estates composed of personal property, or of both real and personal property, in so far as the same may be applicable.