POTENCIANO SUNGA, ET. AL, PETITIONERS, VS. BENITO DE GUZMAN, ET. AL., RESPONDENTS.

Petitioners appeal, by this petition for certiorari, from the
decision of the Court of Appeals* affirming, as being in accordance with law
and the evidence, the decision of the Court of First Instance of Pampanga the
dispositive portion of which reads as follows:

“WHEREFORE, this
Court hereby renders judgment in favor of the plaintiffs and against the
defendants declaring the plain­tiffs absolute owners of the three-ninth portion
pro-indiviso of the property in litigation and orders the defendants to convey
the said three-ninth portion pro­-indiviso to the herein plaintiffs and to
render an accounting of the corresponding harvest from 1947 up to the present
to deliver to the plaintiffs whatever products or its corresponding value that
may corres­pond to them as their participation of the harvest during that
period and to pay attorney’s fees in the amount of P500.00, with costs.”
(p. 52, Record on Appeal.)

As found by the Court of Appeals, the pertinent facts, quoting
from its decision promulgated on January 17, 1966, are as follows:

“It is undisputed that the private contract of sale (Exhibit
C), was signed by five (5) of the nine (9) legitimate heirs of the spouses Juan
de Guzman and Lucia Montemayor.  There is
also no dis­pute that the property in question was a fishpond of 5,590 sq. m.
situated in the barrio of Sebitanan, municipality of Sexmoan, province of
Pampanga.  It is also undisputed that
five (5) of the heirs, namely, Gervacio, Felino, Casiano, Marcelino and
Marciano, all surnamed De Guzman, were the only heirs among the nine (9)
children who sold their respect­ive shares to Feliciano Sibug, a widower, for
and in consideration of P700.00,
as shown in the said deed of Sales, Exhibit C, on July 1, 1947.  However, the referred deed of sale is not
notarized nor regis­tered in the Register of Deeds of Pampanga.  The records also disclosed that according to
the declaration of real estate (Exh. B) the said property was still registered
in the name of the father of the aforesaid plaintiffs-appellees up to October
5, 1962.  The records further disclosed
that the De Guzman couple died in 1935 and 1937, respectively, hence by
operation of law, the nine (9) children succeeded in the ownership of the
property in question.  Demands were made
by plaintiffs-appellees for the delivery of their respective shares from the
defendants-appellants since 1955, but the latter refused to comply with their
Lawfull (sic) demands.  From the
execution of the deed of sale,
defendants-appellants were in physical possession of the fishpond in question,
hence an action was instituted against the defendants on February 5, 1962.

“From the private deed of sale (Exhi­bit C) it is indisputably
clear that five (5) of the heirs of the late Juan de Guzman and Lucia
Montemayor signed and four (4) other did not sign.  However, three (3) co-­heirs only filed the
complaint, namely, Benito, Emilia and Felisa, all surnamed De Guzman, which
represents 3/9 of the property in question which cannot be considered as sold
to the defendants-appellants by any stretch of the imagination.  To claim now that the whole property in
question was sold to the said defendants-appellants is absurd.”

Upon the foregoing facts, the veracity of which not being
challenged, is binding upon this Court, are predicated the legal issues raised
by petitioners-appellants, which are as reflected in the errors assigned by
them against the Court of Appeals, to wit:

“FIRST ASSIGNMENT OF
ERROR

THE LOWER COURT ERRED IN DISREGARDING THE
TESTIMONY OF BENITO DE GUZMAN REFERRING TO HIS KNOWLEDGE OF THE POSSESSION OF
THE LAND IN QUESTION BY THE DEFENDENTS-APPELLANTS WAY BACK IN  1948.

“SECOND ASSIGNMENT OF
ERROR

THE LOWER COURT ERRED IN NOT TAKING INTO
ACCOUNT THE TESTIMONY OF BENITO DE GUZMAN WHICH REFERS TO HIS KNOW­LEDGE AND
HIS SISTERS OF THE SALE OF THE LAND IN QUESTION TO FELICIANO SIBUG IN 1948.

“THIRD ASSIGNMENT OF
ERROR

THE LOWER COURT ERRED IN NOT RULING THAT
THE CAUSE OF ACTION PLEADED BY THE PLAINTIFFS-APPELLEES HAS ALREADY PRESCRIBED.

“FOURTH ASSIGNMENT OF
ERROR

THE LOWER COURT ERRED IN NOT RULING THAT
THE APPELLANTS HAVE ACQUIRED OWNERSHIP OF THE LAND IN QUESTION THRU ACQUISITIVE
AND EXTINCTIVE PRESCRIPTION.”

As may be seen from the assignments of error, peti­tioners rely,
mainly, if not solely, on the defense of prescription in resisting the action
of respondents-appellees to recover their shares, consisting of 3/9 of the
whole fish­pond, which they inherited from their parents, jointly with their
other brothers and sisters, who sold their shares in the property to the
predecessor of herein petitioners-appellants.

Petitioners-appellants’ claim of prescription against
respondents-appellees is made to rest on their alleged adverse possession of
the whole fishpond, dating back from 1948. 
In support of their allegation of having possessed adversely the property
in question, they quoted the following testimony of Benito de Guzman, one of
the appellees:

Direct Examination

“Q. Do you know what happened to
this land in 1948?

A.      I
know.

Q. 
What happened, will you please state to the Court?

A.  
Potenciano Sunga came in possession.

Q. 
Do you know the reasons why Potenciano Sunga took possession of this
land?

A.  
I know.

Q. 
What is that, will you please state to the Court?

A. 
The share of my six brothers was sold to Potenciano Sunga.  (t.s.n., Oct. 5, 1962, pages 6 and 7, Tiglao.)”

Cross
Examination

“Q. 
According to you this Document Exhibit “C” you said you came
to know of this document.  Can you tell
the Court when did you come to know of this document?

A.       If I am not mistaken it was sold in 1948.

COURT: 
Answer the question.

Q. 
When did you come to know that document of the existence of that
document?

A.  
It is only now that I saw this document.

Q.
Mr. de Guzman, you stated that in 1955 you came to know the defendant
Potenciano Sunga came in possession of
the land sketched in Exhibit A, is that correct?

A. 
Yes, sir, it was in 1948 when he came to possession.

Q. In 1948 that was the first time you
came to know that Potenciano Sunga took possession?

A. 
In 1948.

Q. How did you happen to know that
Potenciano Sunga took possession of the land covered by the sketch in Exhibit
“A”?

A. 
I came to know it from my 6 brothers who sold their shares.

Q. They also told you how much they sold
the property you have described in this sketch?

A. 
Yes, sir, for P700.00.

Q. What about Emilia and Felisa de
Guzman, if you know, did they come to know also that Potenciano Sunga came in
possession of the land?

A. 
Yes, sir.

Q. That was also in 1948?

A. 
Yes, sir.  (Italics ours; t.s.n.,
Oct. 5, 1962, pages 16, 17, 18, Tiglao.)”

What is notably significant from the above-quoted testimony is
that appellees, while they knew of the posses­sion of petitioners commencing in
the year 1948, they knew of the sale only when they were told by their brothers
who sold their share.  As to when the
information was given to appellees, the quoted testimony does not indicate in
any positive manner.  Had the information
been given upon the execution of the document, and if the sale included the
whole fishpond, not only the share of the vendors, there is no reason why
appellees did not similarly sign as vendors on the private instrument of
sale.  What this proves is that appellees
were not definitely aware that appellant’s possession extended over the whole
fishpond, including that which pertained to them as their share.  In that state of their knowledge as to the
extent and nature of petitioners-appellant’s possession, said possession cannot
be said to be adverse and open as to give rise to title by prescription in
favor of petitioners-appellants.

A fishpond is not as physically or actually occupied or held in
possession as a parcel of land, in that the signs of possession in the latter
are more visible, and the extent of its exercise or enjoyment, more manifest
and easily deter­mined.  Hence, the adverse
nature of the possession of parcel of land is more overt as to satisfy also the
other element of prescription that the possession must be open and public.  In the case of a fishpond, owned in common, one or some of whose co-owners sell
their undivided share to another, the only way the whole fishpond, including
the shares of the other co-owners may be said to have been held in adverse
possession by the vendee, as against the co-owners who did not sell, is if he
harvests all the fish in the fishpond, leaving nothing for the other co-owners
who did not sell their share.  This is
not as easily ascertained as in the exercise of possession over a piece of
land, which is relatively quite easy to show that the possession is to the
exclusion of the other co-owners by the extent of the possession, as by actual
occupation if the land is for occupancy, or the extent of the enjoyment of the
produce of said land, as when it is for cultivation or raising of products
sustained by the soil.  When one harvests
from a fishpond, of which he is
only a part-owner, it must be assumed that his harvest is only to the extent he
is right­fully entitled to, until the contrary is positively shown, which was
not done in the present case.

Likewise, against appellants’ pretension is the fact that the tax
declaration (Exhibit “B”) over the land has remained up to the
present in the name of the original owners, the deceased parents of
respondents-appellees.  The possession of
petitioners-appellants, was, therefore, not completely adverse or open, nor was
it truly in the concept of an owner, which are indispensable elements for
prescription to become legally effective as a means of acquiring real
property.  (Articles 1117 and 1118, Civil
Code of the Philippines; Corpuz vs. Padilla, 5 SCRA 814, 820; Agolto vs. Court
of Appeals, 33 SCRA 765, 771; Cabrera vs. Tiano, 8 SCRA 542, 545; Diñoso vs.
Court of Appeals, 7 SCRA 666, 669; Mendoza, et al. vs. Mella, 17 SCRA 788, 792;
Harden vs. Harden, et al., 20 SCRA 706, 711; Seminary of San Carlos vs.
Municipality of Cebu, 19 Phil. 32, 40; Negrete vs. Court of First Instance of
Marinduque, 48 SCRA 113, 122-123).

The argument of petitioner-appellant that they have not been
giving respondents-appellees their share in the harvest, and by such act, they
have shown repudiation of the trust which may have been created is not quite
convincing.  With the undisputed fact
that petitioners-appellants had promised one of the respondents-appellees,
Benito de Guzman, to pay him for his share in the land, petitioners-appellants
have manifested their continuing
recognition of the right of said respondent-appellee, including his two
sisters, his co-respondents-appellees herein, over their corresponding share of
the fishpond, as long as the promise was not expressly withdrawn, but has, as is apparent from the evidence,
remained subsisting and continuing, since no definite date was fixed for the
promise to be fulfilled.  To constitute
the failure to pay as promised as an act of repudiation of the trust, or as a
manifestation of adverse possession, there should be an unequivocal act of
refusal to make payment, or a definite reneging from the promise.  This can happen only if a date has been fixed
for the fulfillment of the promise, but the period had lapsed without the
promise having been redeemed.

As also correctly held by the respondent Court, the promise of
petitioners-appellants to pay for the share of respondents-appellees interrupts
the possession as a source of prescriptive rights (Article 1125, Civil Code;
San Carlos vs. Municipality of Cebu, 19 Phil. 32).  In the case herein cited, Justice Moreland
said:

“Any express or implied acknowledgment which the possessor
makes with regard to the dominant rights of the true owner, interrupts the
possession held for prescriptive purposes and defeats the operation of the law
granting such rights.”

In trying to refute this ruling of the Court of Appeals,
petitioners-appellants cite Article 1155 of the New Civil Code which reads:

“The prescription of action is interrupted when they are filed
before the Court, when there is a written extra-judicial demand by the
creditors and when there is any written acknowledgment
of the debt by the debtor.”

As may easily be discerned, the cited provision has no relevance
to possession as an element of prescription, referring as it does to
“prescription of action”, an entirely different matter from the
“interruption of possession” for acquisitive prescriptive purposes, as
held in the case of San Carlos vs. Municipality of Cebu, supra.

As to the alleged error of the Court for not dis­missing the case
for the non-inclusion of indispensable parties, appellees contend that this
question was never raised in the Motion to Dismiss filed by petitioners with
the trial court (pp. 6-10, Record on Appeal), nor in their brief in the Court
of Appeals, and, therefore may not be raised, nor given consideration, for the
first time in this Court.  This is a
valid proposition We have to uphold. 
Even by virtue of express provisions of law, representative suits that
need not be joined by all parties in the same status or condition, and linked
together with a common interest, are permissible.  Thus anyone of the co-owners may bring an
action for ejectment (Article 487, Civil Code), while pre­scription obtained by
a co-proprietor or a co-owner shall benefit the others (Article 1111, Civil
Code).  Moreover, non-joinder of parties,
is not a ground to dismiss an action. 
(Section 11, Rule 3, Revised Rules of Court; Salazar, et al vs.
Ortizano, 16 SCRA 662, 666; MacLeod vs. Cohen-Erichs Corporation, 1 Federal
Rules Service 306; Holmberg vs. Han­naford, 1 Federal Rules Service 307;
Sanchez vs. Court of First Instance of Rizal, 40 Phil. 155, 159; De los Santos
vs. Sheriff of Rizal, 64 Phil. 193, 198; Esperanza Montes vs. Enrique S. Castro
and Rosendo M. Castro, 105 Phil. 1302, 1303-1304).

With the adverse
disposition of all the assignments of error of the
petitioners-appellants, We have to find their
petition as devoid of any merit. 
We find the weight of justice and equity on the side of
respondents-appellees who had not parted with their share, as their other
brothers did who sold their share with a document signed by them, but not by
respondents-appellees, a strong shield against the weak thrust of prescription
as the sole defense of appellants in resisting the just claim of appellees for
the recovery of their share, prosecuting their claim as paupers.  So did the Court of First Instance see the
position of appellees, as so also the Court of Appeals.  We find no reason to make Us take a different
view.

WHEREFORE, the judgment appealed from should be, as it
is hereby, affirmed, and the present petition, dismissed, with costs against
petitioners-appellants.

Teehankee, (Chairman), Makasiar, Fernandez, Guerrero, and Melencio-Herrera, JJ., concur.