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[G.R. No. 120864. October 8, 2003] MANUEL T. DE GUIA, petitioner, vs.

COURT OF APPEALS (Former Sixth Division) and JOSE B. ABEJO, represented by his Attorney-in-Fact, Hermenegilda Abejo-Rivera, respondents. Property>Co-ownership Facts (Long version): Case is a petition for certiorari on the decision of the trial court ordering DE GUIA to turn over to private respondent ABEJO possession of undivided portion of a fishpond and to pay actual damages and attorneys fees

On May 12, 1986, ABEJO instituted an action for recovery of possession with damages against DE GUIA.
ABEJO alleged that he is the owner of the undivided portion of a property used as a fishpond in Meycauayan, Bulacan, claiming ownership over 39,611 sq. m out of the total area of 79,220 sq. m.

ABEJO further averred that DE GUIA continues to possess and use the fishpond without any contract and
without paying rent to ABEJOs damage and prejudice. ABEJO also complained that DE GUIA refuses to surrender ownership and possession of the FISHPOND despite repeated demands to do so after DE GUIAs sublease contract over the FISHPOND had expired.

ABEJO asked the trial court to order DE GUIA to vacate an approximate area of 39,611 square meters as
well as pay damages DE GUIA, a lawyer by profession, appeared on his own behalf. He filed his Answer on 12 January 1990 after the Court of Appeals resolved several issues concerning the validity of the service of summons on him. In his Answer, DE GUIA alleged that the complaint does not state a cause of action and has prescribed. He claimed that the FISHPOND was originally owned by Maxima Termulo who died intestate with Primitiva Lejano as her only heir. According to him, ABEJO is not the owner of the entire FISHPOND but the heirs of Primitiva Lejano who authorized him to possess the entire FISHPOND. He assailed ABEJOs ownership of the undivided portion of the FISHPOND as void and claimed ownership over an undivided half portion of the FISHPOND for himself. DE GUIA sought payment of damages and reimbursement for the improvements he introduced as a builder in good faith.

The trial court set the pre-trial and required the parties to file their pre-trial briefs. ABEJO filed his pre-trial
brief on 05 April 1990. DE GUIA filed his pre-trial brief[6] on 31 July 1990. DE GUIAs pre-trial brief raised as the only issue in the case the amount of damages in the form of rent that DE GUIA should pay ABEJO. DE GUIA also submitted an Offer to Compromise, offering to settle ABEJOs claim for P300,000 and to lease the entire FISHPOND to any party of ABEJOs choice. The trial court rendered a decision in favor of ABEJO, ordering DE GUIA to turn over possession of of the undivided portion of the fishpond, as well as payment of actual damages and attorneys fees DE GUIA went to the Court of Appeals ascribing to the trial court an error in ordering him to vacate and surrender possession of the fishpond The factual findings of the trial court, adopted in toto by the CA, as follows:

1. The subject of the dispute are two undivided parcels of land used as a fishpond situated in Barrio Ubihan, Meycauayan, Bulacan, originally co-owned by Primitiva Lejano and Lorenza Araniego married to Juan Abejo.

o o 2. The FISHPOND is registered under the names of Primitiva Lejano and Lorenza Araniego under TCT No. 6358 of the Bulacan Register of Deeds as follows:

o o PRIMITIVA LEJANO, Filipina, of legal age, single - share; and LORENZA ARANIEGO, Filipina, of legal age, married to Juan Abejo, share, ---

o o 3. The FISHPOND has a total land area of approximately 79,220 square meters. ABEJO is seeking to recover possession of the undivided portion of the FISHPOND containing 39,611 square meters.

o o 4. DE GUIA (along with a certain Aniano Victa) acquired possession of the entire FISHPOND by virtue of a document captioned Salin ng Pamumusisyong ng Palaisdaan (Lease Contract) executed between him and the heirs of Primitiva Lejano. The Lease Contract was effective from 30 July 1974 up to 30 November 1979 for a consideration of P100,000.

o o 5. The Lease Contract was executed with the knowledge and consent of Teofilo Abejo, sole heir of Lorenza Araniego Abejo. Teofilo Abejo acquired Lorenza Araniego Abejos undivided share in the FISHPOND by intestate succession.

o o 6. Teofilo Abejo (now deceased) sold his undivided share in the FISHPOND to his son, ABEJO, on 22 November 1983.

o o 7. DE GUIA continues to possess the entire FISHPOND and to derive income from the property despite the expiration of the Lease Contract and several demands to vacate made by Teofilo Abejo and by his successor-in-interest, ABEJO. The last demand letter was dated 27 November 1983.

o o 8. ABEJO filed his complaint for recovery of possession with damages against DE GUIA on 12 May 1986.

o o 9. DE GUIAs claim of ownership over the other undivided portion of the FISHPOND has not been finally adjudicated for or against him.

The CA affirmed the trial courts decision, debunking DE GUIAs claim that partition and not recovery of
possession was the proper remedy under the circumstances. The Court of Appeals pointed out that DE

GUIAs failure to respect ABEJOs right over his undivided share in the FISHPOND justifies the action for recovery of possession. The trial courts decision effectively enforces ABEJOs right over the property which DE GUIA violated by possession and use without paying compensation. According to the Court of Appeals, partition would constitute a mechanical aspect of the decision just like accounting when necessary. Hence this appeal

Issue: WON the CA erred in sustaining the trial courts decision ordering De Guia to vacate the fishpond, on the ground that the proper action should have been partition rather than recovery of possession

Ruling:

YES. Under Article 484 of the Civil Code, there is co-ownership whenever the ownership of an undivided thing or right belongs to different persons. A co-owner of an undivided parcel of land is an owner of the whole, and over the whole he exercises the right of dominion, but he is at the same time the owner of a portion which is truly abstract.[15] On the other hand, there is no co-ownership when the different portions owned by different people are already concretely determined and separately identifiable, even if not yet technically described.[16]

Article 487 of the Civil Code provides, [a]ny one of the co-owners may bring an action in ejectment. This article covers all kinds of actions for the recovery of possession. Article 487 includes forcible entry and unlawful detainer (accion interdictal), recovery of possession (accion publiciana), and recovery of ownership (accion de reivindicacion). The summary actions of forcible entry and unlawful detainer seek the recovery of physical possession only. These actions are brought before municipal trial courts within one year from dispossession. However, accion publiciana, which is a plenary action for recovery of the right to possess, falls under the jurisdiction of the proper regional trial court when the dispossession has lasted for more than one year. Accion de reivindicacion, which seeks the recovery of ownership, also falls under the jurisdiction of the proper regional trial court.[17]

Any co-owner may file an action under Article 487 not only against a third person, but also against another co-owner who takes exclusive possession and asserts exclusive ownership of the property.[18] In the latter case, however, the only purpose of the action is to obtain recognition of the co-ownership. The plaintiff cannot seek exclusion of the defendant from the property because as co-owner he has a right of possession. The plaintiff cannot recover any material or determinate part of the property.[19]

It is a basic principle in civil law that before a property owned in common is actually partitioned, all that the co-owner has is an ideal or abstract quota or proportionate share in the entire property. A co-owner has no right to demand a concrete, specific or determinate part of the thing owned in common because until division is effected his right over the thing is represented only by an ideal portion.

As such, the only effect of an action brought by a co-owner against a co-owner will be to obtain recognition of the co-ownership; the defendant cannot be excluded from a specific portion of the property because as a co-owner he has a right to possess and the plaintiff cannot recover any material or determinate part of the

property. Thus, the courts a quo erred when they ordered the delivery of one-half () of the building in favor of private respondent.

Since a co-ownership subsists between ABEJO and DE GUIA, judicial or extra-judicial partition is the proper recourse. An action to demand partition is imprescriptible and not subject to laches.[22] Each co-owner may demand at any time the partition of the common property unless a co-owner has repudiated the coownership under certain conditions.[23] Neither ABEJO nor DE GUIA has repudiated the co-ownership under the conditions set by law.

WHEREFORE, the Decision dated 22 August 1994 and Resolution dated 27 June 1995 of the Court of Appeals in CA-G.R. CV No. 39875 is AFFIRMED with respect to that portion ordering Manuel T. De Guia to pay Jose B. Abejo compensatory damages of P212,500 and attorneys fees of P20,000, and MODIFIED as follows:

1. The co-ownership between Manuel T. De Guia and Jose B. Abejo over the entire FISHPOND covered by TCT No. 6358 of the Bulacan Register of Deeds is recognized without prejudice to the outcome of CAG.R. CV No. 38031 pending before the Court of Appeals and other cases involving the same property;

2. Manuel T. De Guia and Jose B. Abejo shall equally enjoy possession and use of the entire FISHPOND prior to partition;

3. The compensatory damages of P25,000 per annum representing rent from 27 November 1983 until May 1992 shall earn interest at 6% per annum from 27 November 1983 until finality of this decision, and thereafter at 12% per annum until full payment;

4. Manuel T. de Guia shall pay Jose B. Abejo a yearly rent of P25,000 from June 1992 until finality of this decision, with interest at 6% per annum during the same period, and thereafter at 12% interest per annum until full payment;

5. After finality of this decision and for as long as Manuel T. de Guia exclusively possesses the entire FISHPOND, he shall pay Jose B. Abejo a yearly rental of P25,000 for the latters undivided share in the FISHPOND, unless Jose B. Abejo secures from the proper court an order fixing a different rental rate in view of possible changed circumstances.

SO ORDERED.