Republic of the Philippines

MUNICIPAL CIRCUIT TRIAL COURT

Third Judicial Region
Branch __
Municipality of Sta. Ignacia, Tarlac

JOHANE FERNANDO,
Plaintiff,
Civil Case No. 764-M(16)
For: Accion Publiciana
-versus-

SPS. DANTE & SUSAN GARMA,

Defendants.

xx----------------------------------------xx

REPLY
(To Defendants’ Answer with Counterclaims
and Motion to Dismiss)

PLAINTIFF, by counsel and unto this Honorable Court, respectfully

states that:

I. PRELIMINARIES

1. The present action. Contrary to the characterization of the

Plaintiff, the present action is one for Accion Publiciana and not Unlawful
Detainer (Ejectment). For the orderly guidance of the parties and this
Honorable Court, the pronouncements (definition and adjudication) in the
consolidated cases below is adopted:

MANUEL CATINDIG, represented by EMILIANO

CATINDIG-RODRIGO, vs. AURORA IRENE VDA. DE
MENESES, (G.R. No. 165851)
and
SILVINO ROXAS, SR., represented by FELICISIMA
VILLAFUERTE-ROXAS vs. COURT OF APPEALS
and AURORA IRENE VDA. DE MENESES,
(G.R. No. 168875), February 2, 2011

“Besides, it must be emphasized that

this case is one for recovery of
possession, also known as accion
publiciana, which is a plenary action for
recovery of possession in an ordinary
 civil proceeding, in order to determine
the better and legal right to possess,
independently of title. The objective of
the plaintiffs in accion publiciana is to
recover possession only, not ownership.
However, where the parties raise the issue
of ownership, the courts may pass upon the
issue to determine who between the parties
has the right to possess the property.
This adjudication, however, is not a final
and binding determination of the issue of
ownership; it is only for the purpose of
resolving the issue of possession where
the issue of ownership is inseparably
linked to the issue of possession. The
adjudication of the issue of ownership,
being provisional, is not a bar to an
action between the same parties involving
title to the property.” (Citations omitted)

2. Jurisdiction. This Honorable Court has jurisdiction to hear and

decide accion publiciana. On 24 March 1994, RA 7691 was enacted
expanding the jurisdiction of first level courts to include “Exclusive
original jurisdiction in all civil actions which
involve title to, or possession of, real property,
or any interest therein where the assessed value of
the property or interest therein does not exceed
Twenty thousand pesos (P20,000.00) or, in civil
actions in Metro Manila, where such assessed value
does not exceed Fifty thousand pesos (P50,000.00)
exclusive of interest, damages of whatever kind,
attorney's fees, litigation expenses and costs.” In
the recent rulings of the Honorable Supreme Court reminds that:

ESPERANZA SUP APO et. al., vs. SPOUSES ROBERTO

and SUSAN DE JESUS, et. al.
G.R. No. 198356, April 20, 2015

“Accion Publiciana and the Jurisdiction of

the MeTC

xxx

Under Batas Pambansa Bilang 129, the

jurisdiction of the RTC over actions
involving title to or possession of real
property is plenary.

RA No. 7691, however, divested the RTC

of a portion of its jurisdiction and
granted the Metropolitan Trial Courts,
Municipal Trial Courts and Municipal
Circuit Trial Courts the exclusive and
original jurisdiction to hear actions
where the assessed value of the property
does not exceed Twenty Thousand Pesos
(P20,000.00), or Fifty Thousand Pesos
(P50,000.00), if the property is located
in Metro Manila.

xxx

In Quinagoran v. Court of Appeals, we

explained:

[D]oes the RTC have jurisdiction over

all cases of recovery of possession
regardless of the value of the property
involved?

The answer is no. The doctrine on

which the RTC anchored its denial of
petitioner's Motion to Dismiss, as
affirmed by the CA -- that all cases of
recovery of possession or accion
publiciana lies with the regional trial
courts regardless of the value of the
property -- no longer holds true. As
things now stand, a distinction must be
made between those properties the assessed
value of which is below P20,000.00, if
outside Metro Manila; and P50,000.00, if
within.

In this regard, the complaint must

allege the assessed value of the real
property subject of the complaint or the
interest thereon to determine which court
has jurisdiction over the action. This is
required because the nature of the action
and the court with original and exclusive
jurisdiction over the same is determined
by the material allegations of the
complaint, the type of relief prayed for
by the plaintiff, and the law in effect
when the action is filed, irrespective of
whether the plaintiffs are entitled to
some or all of the claims asserted
therein.

In the present case, the Spouses

Supapo alleged that the assessed value of
the subject lot, located in Metro Manila,
is P39,980.00. This is proven by the tax
declaration45 issued by the Office of the
City Assessor of Caloocan. The respondents
 do not deny the genuineness and
authenticity of this tax declaration.

Given that the Spouses Supapo duly

complied with the jurisdictional
requirements, we hold that the MeTC of
Caloocan properly acquired jurisdiction
over the complaint for accion publiciana.
xxx” (Citations omitted)

GERMELINA TORRES RACAZA, vs. ERNESTO

GOZUM.,
G.R. No. 148759. June 8, 2006

“Reminders of previous demand does not

renew one year period to file an ejectment
suit”

“The Court has, in the past, ruled

that subsequent demands which are merely
in the nature of reminders or reiterations
of the original demand do not operate to
renew the one-year period within which to
commence the ejectment suit considering
that the period will still be reckoned
from the date of the original demand”

3. Overall, there is no obstacle for this Honorable Court to

proceed in the disposition of the present action. Possession can be easily
passed upon using the pronouncements in Aguilar v. Alfaro, G.R. No.
164402, July 5, 2010 that:

“In an action for recovery of possession of

realty, who has the better right of
possession, the registered owner armed with
a Torrens title or the occupants brandishing
a notarized but unregistered deed of sale
executed before the land was registered
under the Torrens system?

As we previously ruled in similar cases,

we resolve the question in favor of the
titleholder.”

II. CAUSE OF ACTION – PLAINTIFF AS OWNERS HAS THE

BETTER RIGHT OF POSSESSION

4. To reiterate, the following are alleged in the Complaint which

are determinative of the ultimate facts of the present case:
 a. Plaintiff as heir of the late Spouses Fernando (predecessors-in-
interest), has right to possess (as owner) the subject lot in the
present case.
b. Subject lot is a portion of the real property covered by OCT
No. 15033, an indefeasible and incontrovertible proof of
ownership. The assessed value of the subject lot is below
PHP20,000.00.
c. Defendants occupy the subject lot under a supposed Deed of
Absolute Sale.
d. Despite demand to vacate for a period exceeding one year,
Defendants continue to ignore the Plaintiff’s protestations.
e. Plaintiff in the concept of an absolute owner has the better
right of possession and right to exclude Defendant from the
premises of the subject lot.

5. The question of possession has been addressed by the

Honorable Supreme Court using established rules such as pertaining to right,
title and concept of possessions. In the case below, the Honorable Court was
true to the intentions of Torrens System when it ruled that:

HEIRS OF JOSE MALIGASO, vs. SPOUSES ENCINAS

G.R. No. 182716, June 20, 2012

The point of inquiry is whether the

respondents have the right to evict the
petitioners from the subject property and
this should be resolved in the respondents
favor. Between the petitioners
unsubstantiated self-serving claim that
their father inherited the contested
portion of Lot No. 3517 and the
respondents Torrens title, the latter must
prevail. The respondents title over such
area is evidence of their ownership
thereof. That a certificate of title
serves as evidence of an indefeasible and
incontrovertible title to the property in
favor of the person whose name appears
therein and that a person who has
a Torrens title over a land is entitled to
the possession thereof are fundamental
principles observed in this jurisdiction.
Alternatively put, the respondents title
and that of their predecessors-in-interest
give rise to the reasonable presumption
that the petitioners have no right over
the subject area and that their stay
therein was merely tolerated. The
petitioners failed to overcome this
presumption, being inadequately armed by a
narration that yearns for proof and
corroboration. The petitioners harped that
 the subject area was their fathers share
in his parents estate but the absence of
any evidence that such property was indeed
adjudicated to their father impresses that
their claim of ownership is nothing but a
mere afterthought. In fact, Lot No. 3517
was already registered in Marias name when
Jose Sr. built the house where the
petitioners are now presently residing. It
is rather specious that Jose Sr. chose
inaction despite Marias failure to cause
the registration of the subject area in
his name and would be contented with a
bungalow that is erected on a property
that is supposedly his but registered in
anothers name. That there is allegedly an
unwritten agreement between Maria and
Virginia that Jose Sr.s and the
petitioners possession of the subject area
would remain undisturbed was never proven,
hence, cannot be the basis for their claim
of ownership. Rather than proving that
Jose Sr. and the petitioners have a right
over the disputed portion of Lot No. 3517,
their possession uncoupled with
affirmative action to question the titles
of Maria and the respondents show that the
latter merely tolerated their stay.”
(Citations omitted)

III. REFUTATIONS

6. In general, the allegations contained in the Answer are

constitutive of an indirect or collateral attacked on the Torrens title in the
favor of Plaintiff. As such, they are denied and deemed irrelevant for the
determination of issue of possession. Nevertheless, since it may not be
inevitable to touch ownership, Plaintiff enters the foregoing denials,
refutations and truth of the matter based on records.

ASUNCION URIETA VDA. DE AGUILAR, represented

by ORLANDO U. AGUILAR vs. SPOUSES EDERLINA B.
ALFARO and RAUL ALFARO,
G.R. No. 164402, July 5, 2010

“Torrens certificate of title cannot be the

subject of collateral attack.

Moreover, respondents attack on the

validity of petitioners title by claiming
that their mother became the true owner of
the southern portion of Lot 83 even before
the issuance of OCT No. P-9354 constitutes
as a collateral attack on said title. It is
an attack incidental to their quest to
defend their possession of the property in
an accion publiciana, not in a direct action
whose main objective is to impugn the
validity of the judgment granting the
title. This cannot be allowed. Under Section
48 of Presidential Decree No. 1529,
otherwise known as the Property Registration
Decree, a certificate of title cannot be the
subject of collateral attack. Thus:

SEC. 48. Certificate not subject to

collateral attack. A certificate of title
shall not be subject to collateral
attack. It cannot be altered, modified, or
canceled except in a direct proceeding in
accordance with law.

A collateral attack transpires when, in

another action to obtain a different relief
and as an incident to the present action, an
attack is made against the judgment granting
the title. This manner of attack is to be
distinguished from a direct attack against a
judgment granting the title, through an
action whose main objective is to annul, set
aside, or enjoin the enforcement of such
judgment if not yet implemented, or to seek
recovery if the property titled under the
judgment had been disposed of. Thus,
in Magay v. Estiandan, therein plaintiff-
appellee filed an accion publiciana. In his
defense, defendant-appellant alleged among
others that plaintiff-appellees Transfer
Certificate of Title No. 2004 was issued
under anomalous circumstances. When the case
reached this Court, we rejected defendant-
appellants defense on the ground that the
issue on the validity of said title can only
be raised in an action expressly instituted
for that purpose.Also, in Co v. Court of
Appeals we arrived at the same conclusion
and elaborated as follows:
 In their reply dated September 1990,
petitioners argue that the issues of fraud
and ownership raised in their so-called
compulsory counterclaim partake of the
nature of an independent complaint which
they may pursue for the purpose of assailing
the validity of the transfer certificate of
title of private respondents. That theory
will not prosper.

While a counterclaim may be filed with a

subject matter or for a relief different
from those in the basic complaint in the
case, it does not follow that such
counterclaim is in the nature of a separate
and independent action in itself. In fact,
its allowance in the action is subject to
explicit conditions, as above set forth,
particularly in its required relation to the
subject matter of opposing partys
claim. Failing in that respect, it cannot
even be filed and pursued as an altogether
different and original action.

It is evident that the objective of such

claim is to nullify the title of private
respondents to the property in question,
which thereby challenges the judgment
pursuant to which the title was
decreed. This is apparently a collateral
attack which is not permitted under the
principle of indefeasibility of
a Torrens title. It is well settled that
a Torrens title cannot be collaterally
attacked. The issue on the validity of
title, i.e., whether or not it was
fraudulently issued, can only be raised in
an action expressly instituted for that
purpose. Hence, whether or not petitioners
have the right to claim ownership of the
land in question is beyond the province of
the instant proceeding. That should be
threshed out in a proper action.” (Citations
omitted)

7. In paragraphs 1, 4, 6 – 8 of the Answer, Defendants denied the

allegations of the Plaintiff relating to (a) ownership of the subject lot, (b)
relationship of Plaintiff to late spouses Fernando and (c) right to demand the
Defendant to vacate the premises of the subject lot. Interestingly, the matters
denied are of public records and can be easily verified. Defendant admitted
matters of public records such assessed value of the subject lot and provisions
of law such as RA 9176. The same admissions can be said of matters
contained in the above numbered paragraphs but Defendant opted to deny the
same.

8. Ownership of the subject lot is a matter of public records, it

being covered under the Torrens System and provision of law under PD1521
or Property Registration decree.

9. The relationship of the Plaintiff to late spouses Fernando and

heirship is also a matter of public records, parentage, birth and death under
the custody of the Civil Registrar and provisions of law under the New Civil
Code (on Succession).

10. Plaintiff has the right to demand the Defendant to vacate the
premises of the subject lot being a holder of an indefeasible and
incontrovertible proof of ownership. The rights to possess, use or abuse are
among the most recognized rights of an owner under the law. To empathize,
in the case below, the Honorable Supreme Court cut through the exact
position of herein parties and ruled that title holder should prevail:

ASUNCION URIETA VDA. DE AGUILAR, represented

by ORLANDO U. AGUILAR vs. SPOUSES EDERLINA B.
ALFARO and RAUL ALFARO,
G.R. No. 164402, July 5, 2010

As against petitioners Torrens title,

respondents Kasulatan sa Bilihan cannot
confer better right to possess.

It is settled that a Torrens title is

evidence of indefeasible title to property
in favor of the person in whose name the
title appears. It is conclusive evidence
with respect to the ownership of the land
described therein. It is also settled that
the titleholder is entitled to all the
attributes of ownership of the property,
including possession. Thus, in Arambulo v.
Gungab, this Court declared that the age-old
rule is that the person who has
a Torrens title over a land is entitled to
possession thereof.

In the present case, there is no dispute

that petitioner is the holder of a Torrens
title over the entire Lot 83. Respondents
have only their notarized but
unregistered Kasulatan sa Bilihan to support
their claim of ownership. Thus, even if
respondents proof of ownership has in its
favor a juris tantum presumption of
authenticity and due execution, the same
cannot prevail over
petitioners Torrens title. This has been our
consistent ruling which we recently
reiterated in Pascual v. Coronel, viz:

Even if we sustain the petitioners

arguments and rule that the deeds of sale
are valid contracts, it would still not
bolster the petitioners case. In a number of
cases, the Court had upheld the registered
owners superior right to possess the
property. In Co v. Militar, the Court was
confronted with a similar issue of which
between the certificate of title and an
unregistered deed of sale should be given
more probative weight in resolving the issue
of who has the better right to
possess. There, the Court held that the
court a quo correctly relied on the transfer
certificate of title in the name of
petitioner, as opposed to the unregistered
title in the name of respondents. The Court
stressed therein that the Torrens System was
adopted in this country because it was
believed to be the most effective measure to
guarantee the integrity of land titles and
to protect their indefeasibility once the
claim of ownership is established and
recognized.

Likewise, in the recent case of Umpoc v.

Mercado, the Court declared that the trial
court did not err in giving more probative
weight to the TCT in the name of the
decedent vis--vis the contested unregistered
Deed of Sale. Later in Arambulo v. Gungab,
the Court held that the registered owner is
preferred to possess the property subject of
the unlawful detainer case. The age-old rule
is that the person who has a Torrens Title
over a land is entitled to possession
thereof. (Citations omitted.)

As the titleholder, therefore,

petitioner is preferred to possess the
entire Lot 83. Besides, there are telltale
signs which cast doubt on the genuineness of
the Kasulatan. To cite a few:
 1. The date of its execution unbelievably
coincides with the date the buyer,
Anastacia, died;

2. Despite its alleged execution on April

17, 1973, respondents brought up
the Kasulatan only when petitioner asked
them to vacate the disputed
premises. Prior thereto, they neither
asserted their rights thereunder nor
registered the same with the proper
Registry of Deeds;

3. The lawyer who notarized the Kasulatan sa

Bilihan, as well as the witnesses
thereto, was not presented in court; and,

4. The District Land Officer who signed OCT

No. P-9354 by authority of the President
is a public officer who has in his favor
the presumption of regularity in issuing
said title.

11. Also in the same paragraphs, Defendants insist on their

supposed ownership of the subject lot but a reading of the pleading and its
annexes will not support such allegation. The best proof of ownership the
Defendant produced were Deeds of Absolute Sale both dated 24 April 1992.

12. In paragraphs 12 and 13 of the Answer, Defendants alleged that

they own the subject lot. As proof of such alleged ownership Annex 1 is
adduced and represented to be a Deed of Absolute Sale of House and Lot.
Contrary to the allegation that it was dated 24 May 1992, Annex 1 bears the
date of 24 April 1992.

13. In Annex 2, a document adduced and represented to be a Tax

Declaration of the subject lot.

14. Plaintiff next kindly draw the attention of this Honorable Court
to paragraph 31 where Defendants alleged by way of additional explanation
that they also bought the adjacent lot with an area of 152 sqms., identified as
Lot No. 229 and enrolled under the Torrens Systems as OCT No. P-8419.
Annex 11 is also adduced and represented to be a Deed of Absolute Sale of
Lot. Defendant this time however did not mention the date the deed was
executed and notarized but a simple perusal of the exhibit will show the date
24 April 1992.

15. There are interesting facts in Annexes 1 and 11 both adduced

and represented to be as Deeds of Absolute Sale. To highlight:
 a) Both deeds bear the same date of execution – 24 April 1992.

b) In the notarial fields, it will appear that the same Notary Public
– Persing B. Basillo entered the deeds one after the other as
Document Nos. 286 and 287, Page 59, Book No. 137 and Series
1992.

c) In Annex 1, the purported owners and signatory to the deed are

Presentacion, Alejandro Jr. and Gaudencia all surnamed Peralta.
According to the deed, they are only “expectant owners” and
in the Acknowledgement portion, these persons also personally
appeared before the Notary Public to subscribe and sworn to
their act and deed.

d) In Annex 11, same set of people signed the deed and personally
appeared before the Notary Public but for a lot subject enrolled
under the Torrens System and whose technical description is set
out therein. It was represented therein that they are the “only
forced and legitimate heirs” of the late Alejandro Sr.

e) It was claimed by Defendant that the lots are immediately

adjacent but a review of available subdivision plans will reveal
otherwise.

f) Both deeds prepared, signed and notarized on the same day

are sold under different set of representations. The points of
interests grow bigger considering that the same person
presumably prepared both deeds.

16. In paragraphs 14 to 24 of the Answer, Defendants attempted to

trace the subject lot from the portion of the state of the late Julian Valdez and
its subsequent transfers. Within the same enumerations, Annexes 3 – 8 were
adduced and represented to be as Tax Declarations (TD).

17. Defendants postulate that the portion of late Julian Valdez

estate lies on the “east side” of the subject lot the Defendants bought from
the Peraltas. Therefore, the subject lot should lie on the “west side” of the
portion of estate of late Julian Valdez being immediately next to each other.

18. The allegations of the Defendant are irrelevant and not credible.
Assuming arguendo (using) Defendants’ assertion are true, Plaintiff carefully
noted that:

Cancelled by
TD No. Name Area Cancels TD
TD
Julian Valdez
1 674 63 22108 13280
(Lot 250)
Benigno Guillermo
2 13280 63 674 330
(Lot 250)
Gina Guillermo
3 12032 63 14228 13085
(Lot 250)
Gina Guillermo
4 13085 147 12032 13086
(Lot 230)
 Amado Hilario
5 13086 147 -- 15636
(Lot --)
Pedro Fernando
6 15636 147 13086 08001-0862
(Lot --)

19. First, the TDs are not for the subject lot but only to the east side
thereof.

20. Second, it proves that spouses Fernando are buyers for fee
simple of the 147 sqms., now part of the 363 sqms., covered by OCT No. P-
15022 and TD No. 08001-01790.

21. Third, Defendants did not allege nor hinted that whenever the
name Presentacion is referred to, it pertains to their supposed property. Recall
that Defendants purportedly bought 2 lots from the Peraltas.

22. Lastly, by no means the TD can be proof of ownership. The TD

bears the inscription that “Issued for taxation purposes and should not be
considered as title to the property.” Therefore, there can be no implication
of any ownership based solely on the TDs presented.

23. In paragraph 25 of the Answer, Defendants insinuate that

spouses Fernando illegally included the subject lot supposedly owned by
Defendants. This is utterly false and baseless. Spouses Fernando are fee
simple buyer of the 147 sqms., lot in 1991. The OCT was issued in 1994 but
with an area of 363 sqms. There is completely no proof that Defendants’ 107
sqms., was (illegally) made part of the 363 sqms., titled to spouses Fernando
simply because the name Presentacion is no longer indicated in the west side.
A simple inspection of the OCT will reveal that Lot 235 was indicated
therein.

24. Paragraphs 26 – 29 of the Answer are yet another attempt to

trace the property of spouse Fernando but it an attempt in futility with respect
the issues for resolution before this Honorable Office.

25. In paragraph 30 of the Answer, Defendants claimed that the

above (paragraph 23 of the Reply) described real properties were the same
properties bought by them. Assuming that this is correct, then it is an
admission of superior right on the following grounds, (1) latter acquisition of
title (only in 1992), (2) buying from a non-owner (recall that the properties
sold by the Hilarios were traced from the portion of the estate of Julian
Valdez and not from the Peraltas and (3) not exercising “caveat emptor”
when dealing with unregistered properties (as such, Defendant must bear the
cost).

26. Contrary to their supposition in paragraphs 32 and 33 of the

Answer, Defendants acquired neither any right nor any title acknowledged
under the law based on the above circumstances.

27. In paragraphs 34 and 35, Defendants claimed that they erected a

wall on the boundary as they build their house therein. This is speculative and
inaccurate considering that the wall was already there in the year 1991.
Defendant only entered the premises on 1992.
 28. Finally, paragraphs 36 – 40 of the Answer are also denied for
being baseless and false. Defendants supposedly bought the lots from the
Peraltas in 1992 while spouse Fernando acquired their right and title in 1991
and from the Hilarios.

29. Spouses Fernando’s right and title of the subject lot vested on
18 June 1991 when they bought the same for fee simple. Upon the issuance
of the OCT under the Torrens System on 27 September 1995, the ownership
over the subject lot was rendered indefeasible and incontrovertible.

30. Even so, spouses Fernando’s subsequent knowledge that the

Defendants bought the property from a wrong person and the disputed land is
registered under the Torrens System, They tolerated the Defendants entry for
humanitarian reasons and because they do not need the said property that
time. (Paps, d ko gets ibig mo sabihin suggestion ko sa baba.)

31. In view of above, spouses Fernando fully knew in the

succeeding years up to their deaths that their rights as owners of the subject
lot is fully secured and reserved. Modesty aside, spouses Fernando at the
relevant the period after acquiring the subject lot is fairly doing well. They
have no dire need of utilizing the premises and did not mind at all
Defendants’ entry.

32. The issue (Defendants’ entry / use of the premises) is a constant

topic of family discussions. It is the spouses Fernando’s preference not to
actively demand the Defendants to vacate the same. To the mind of the
spouses Fernando, since they have no special plans for the premises yet,
might as well allow the Defendants make use of it in the meantime.
Customary to a traditional Filipino family setting, it is the elders which have
the final word in certain issues, this one is no different.

33. The passing of spouses Fernando changed the family decision.

The past decade presented interesting opportunities which the subject lot will
now have important use.

34. Plaintiff first persistently demanded Defendant to vacate the

premises of the subject lot upon the demise of her mother in 2014. This was
repeated in the course of the year if only to remind the Defendants. Until in
finally in September 2016, the matter reached the Lupon ng Barangay for
conciliation but it failed. Next, services of a counsel was sought to uphold the
right of Plaintiff and leading to issuance of another letter demanding the
Defendants to vacate the premises.

GERMELINA TORRES RACAZA, vs. ERNESTO

GOZUM.,
G.R. No. 148759. June 8, 2006

“The Court has, in the past, ruled that

subsequent demands which are merely in the
nature of reminders or reiterations of the
original demand do not operate to renew the
one-year period within which to commence
 the ejectment suit considering that the period
will still be reckoned from the date of the
original demand”

IV. ON COUNTERCLAIMS

35. Paragraphs 42 – 45 are denied for lack of basis and speculative.

The items prayed for must be proved and duly established in court to lie.
Moreover, asking for dismissal of the complaint is incompatible with asking
counterclaims.

FINANCIAL BUILDING CORPORATION, vs. FORBES

PARK ASSOCIATION, INC.,
G.R. No. 133119. August 17, 2000

“A compulsory counterclaim is
auxiliary to the proceeding in the
original suit and derives its
jurisdictional support therefrom. A
counterclaim presupposes the existence of
a claim against the party filing the
counterclaim. Hence, where there is no
claim against the counterclaimant, the
counterclaim is improper and it must
dismissed, more so where the complaint is
dismissed at the instance of the
counterclaimant. In other words, if the
dismissal of the main action results in
the dismissal of the counterclaim already
filed, it stands to reason that the filing
of a motion to dismiss the complaint is an
implied waiver of the compulsory
counterclaim because the grant of the
motion ultimately results in the dismissal
of the counterclaim.

Thus, the filing of a motion to

dismiss and the setting up of a compulsory
counterclaim are incompatible remedies. In
the event that a defending party has a
ground for dismissal and a compulsory
counterclaim at the same time, he must
choose only one remedy. If he decides to
file a motion to dismiss, he will lose his
compulsory counterclaim. But if he opts to
set up his compulsory counterclaim, he may
still plead his ground for dismissal as an
affirmative defense in his answer. The
latter option is obviously more favorable
to the defendant although such fact was
lost on Forbes Park.
 The ground for dismissal invoked by
Forbes Park in Civil Case No. 16540 was
lack of cause of action. There was no need
to plead such ground in a motion to
dismiss or in the answer since the same
was not deemed waived if it was not
pleaded. Nonetheless, Forbes Park still
filed a motion to dismiss and thus
exercised bad judgment in its choice of
remedies. Thus, it has no one to blame but
itself for the consequent loss of its
counterclaim as a result of such choice.”

V. OPPOSITION ON THE MOTION TO DISMISS

36. As set out in the earlier discussion, this Honorable Court has
jurisdiction to hear and decide the present case. Thus, the motion to dismiss
should be denied.

37. Defendants protest that they require no tolerance from the

Plaintiff or spouses Fernando since they occupy the subject lot as owners
thereof. It must be noted that Defendants are not demanded to vacate the
premises of other portion of their lot but only a portion thereof. Plaintiff and
Defendants are neighbors and only certain extents of their respective
properties are in dispute.

38. Considering that they are neighbors and only a portion of the
spacious area is being disputed, the spouses Fernando tolerated the entry and
use of the Defendants because they do not want it to be a source of any
disagreement.

39. Defendants’ concept of tolerance as one being fully apparent or

even one should be expressly given is an erroneous proposition. To some
extent, silence or passive attitude over the entry and use of the premises (fully
knowing that the relevant area is titled and enrolled under the Torrens
System) is more credible “tolerance” under the law.

40. Certainly, a land dispute between immediate neighbors is not

one the spouses Fernando’s are not willing to endure in their twilight years.
Defendants have no basis to believe nor allege that spouses Fernando never
thought differently over their entry and use of the premises. Neither did
Defendants can claim that spouses Fernando recognized their supposed
ownership of the subject lot.

41. Spouses Fernando’s “tolerance” is a matter internally discussed

among family members and contrary to Defendants’ beliefs, it exists in the
truest meaning of the word. It is just that spouses Fernando wanted to make
good neighbors.

42. However, after the death of the spouses Fernando the Plaintiff
now needed the portion of the property and demanded the Defendants to
vacate but sadly they took no need. Hence, this case.
 43. To reiterate, the following are alleged in the Complaint which
are determinative of the ultimate facts of the present case:

a. Plaintiff as heir of the late Spouses Fernando (predecessors-in-

interest), has right to possess (as owner) the subject lot in the
present case.
b. Subject lot is a portion of the real property covered by OCT
No. 15033, an indefeasible and incontrovertible proof of
ownership. The assessed value of the subject lot is below
PHP20,000.00.
c. Defendants occupy the subject lot under a supposed Deed of
Absolute Sale.
d. Despite demand to vacate for a period exceeding one year,
Defendants continue to ignore the Plaintiff’s protestations.
e. Plaintiff reiterated previous demand but to no avail.
f. Plaintiff in the concept of an absolute owner has the better
right of possession and right to exclude Defendant from the
premises of the subject lot.

44. Thus, the present case must prosper and decided on the merits.

Prayer

WHEREFORE, it is respectfully prayed that judgment be rendered

against the defendant ordering him:

1. To vacate the property and peacefully turn over possession to

Plaintiff;

2. To pay the amount of One Hundred Fifty Thousand Pesos

(P150,000.00) as actual damage.

3. To pay additional monthly rental of P7,000 beginning from the month

of filing the case until final decision, with interest thereon at the legal
rate until fully paid and the defendant vacates said property;

4. To pay the sum of Eighty Thousand Pesos (P80,000.00) as litigation

expenses and attorney’s fees.

Plaintiff further prays for such other reliefs as this Court may deem
just and equitable.

Camiling Tarlac, Philippines, December 12, 2016.

MARTY FRANZ F. TORALBA

Roll of Attorney No. 66455 June 22, 2016
PTR OR No. 3287854
 IBP OR No. 0138635 Tarlac Chapter
MCLE COMPLIANCE No. Exempt-New Passer
Email add: nashtoralba2008@gmail.com