DOROTEA CONFESOR, ET AL., PETITIONERS, VS. HON. PANTALEON PELAYO, ET AL., RESPONDENTS.

On March 29, 1952, Deogracias Umadhay, et al., respondents herein,
filed an action for partition in the Court of First Instance of Iloilo
praying that a parcel of land known as Lot No. 3570 of the Cadastral
Survey of Sta. Barbara, Iloilo, be partitioned between them and the
heirs of Juan Hingco, petitioners herein, in the proportion of one-half
each.

Petitioners interposed the defense that they were the
absolute and exclusive owners of the entire land and consequently,
objected to the requested partition. After trial, the court rejected
petitioner’s claim of exclusive ownership, and accordingly, ordered
that the land be divided into two equal parts, one part to belong to
respondents and the other part to petitioners. Since the order is
interlocutory and not subject to appeal, the court proceeded forthwith
to appoint a commissioner charged with the task of effecting the
partition of the land. The commissioner submitted two plans which he
identified as Plan No. 1 and Plan No. 2. Plan No. 1 is the subdivision
scheme proposed by respondents while Plan No. 2 is the plan proposed by
petitioners. Both plans would give respondents the same area as
petitioners but the latter would want to give to respondents Lot No. 2
in Plan No. 2, giving to themselves Lot No. 1. The trial court resolved
the dispute stating: “Lot No. 1 is hereby adjudicated to plaintiffs
(respondents herein) who may in turn divide it by and among themselves.
Lot No. 2 is hereby adjudicated to defendants (petitioners herein) who
may likewise divide it by and among themselves.”

Petitioners took the case to the Court of Appeals which in due time affirmed in toto
the ruling of the trial court. This decision having become final, the
trial court, upon petition of respondents, issued a writ of execution
ordering respondents to be placed in possession of the portion of land
adjudicated to them in the partition. To this order petitioners
interposed a vigorous objection contending that since in the
dispositive part of the decision of both the trial court as well as the
Court of Appeals nothing is provided that respondents were to be placed
in possession of the lot adjudicated to them the court could not amend
the same by adding thereto a new matter as was done by the trial court.
Moreover, petitioners have a house of strong materials built on the lot
adjudicated to respondents as well as other improvements in the form of
crops of which they cannot be deprived without the corresponding
indemnity. The trial court having denied the petition for
reconsideration petitioners interposed the present petition for
certiorari.

In ordering respondents to be placed in
possession of the lot adjudicated to them even if the decision is
silent in this respect, the trial court made the following comment:

“The
court believes that the opposition is without merit. This action is a
special civil action for partition as prescribed by Rule 71 of the
Rules of Court. There is nothing in the said Rule from which we can
infer that after the approval by the court of the report of the
commissioner another action should be maintained for the delivery to
plaintiffs of the portion of the property that has been alloted to
them. The case cited by defendants is not in point because the same was
not an action for partition. Apparently it was an action for
declaration of ownership. After the approval by the court of the
partition made by the commissioner, such party is entitled to the
possession of the portion assigned to him in the instrument of
partition without the further necessity of instituting another action
for possession. When the partition was made by the commissioner as
ordered by the court and pursuant to Section 3, Rule 71 of the Rules of
Court, said commissioner had taken into account tile improvements
existing on the property to be partitioned. Before making the
partition, the commissioner had complied with the provisions of Section
4, Rule 71 of the Rules of Court which says that:

‘* * * In making the partition, the commissioner 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 several parties in
such lots or parcels as will be most advantageous and equitable, having
due regard to the improvements, situation and quality of the different
parts thereof.’ “

We
find the foregoing comment correct. The original action of this case is
one of partition. It is the purpose of partition to put an end to the
common tenancy of the land or co-ownership. It seeks a severance of the
individual interest of each joint owners vesting in each a sole estate
in specific property and giving to each one the right to enjoy his
estate without supervision or interference from the other. The judgment
of the trial court, ordering the partition of the property, as affirmed
by the Court of Appeals, seeks to accomplish this very purpose. Said
judgment effects to convey to and vest in each party to the action the
portion of the estate assigned to him. This is in accord with Section
11, Rule 71, of the Rules of Court, which provides:

“If
actual partition of the 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. * * *” (Italics supplied.)

It would, therefore, be in accordance with good sense and propriety
that even in the absence of a special pronouncement as regards the
delivery of the respective shares allotted to each co-owner an
execution be issued to effect such delivery in order to carry into full
effect the judgment of partition. Indeed, it would be illusory and
absurd to have a partition if the same could not be carried out. The
delivery is a necessary and indispensable incident to carry into effect
the purpose of partition.

True it is that, as petitioners
now contend, there are some improvements on the lot allotted in the
partition to respondents consisting of a house of strong materials and
some standing crop belonging to petitioners, but their cost or value
must have already been taken into account by the commissioner in
effecting the partition. In fact this is one of the duties of the
commissioner. Thus, the rule provides that “In making the partition,
the commissioners shall view and examine the rea1 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 several parties in such lots or parcels as
will be most advantageous and equitable, having due regard to the improvements, situation and quality of the different parts thereof.”
It is presumed that the Commissioner has done his duty in weighing the
equities of both parties as prescribed in this rule. As properly
observed by the Court of Appeals with regard to the improvements
claimed by petitioner: “The latter plan is more in consonance with
equity and justice, calculated to give both lots equal values and
utilities. Furthermore, three houses claimed by the appellants (now
petitioners) are located in Lot 2 Plan No. 1 which was adjudicated by
the court below to the appellants.”

With regard to the costs
included in the writ of execution, we find nothing improper it
appearing that the decision awards costs to respondents. The payment of
costs rests upon the discretion of the court, and here the same was
properly awarded considering that the defeated party had opposed the
action for partition.

In conclusion, we find that the trial court did not abuse its discretion in issuing the order now disputed by petitioners.

Wherefore, petition is denied, with costs against petitioners.

Bengzon, Acting C. J., Concepcion, Reyes, J. B. L., Barrera, Paredes, and Dizon, JJ., concur.

Padilla, J., concurs in the result.