EDITHA ALVIOLA AND PORFERIO ALVIOLA, PETITIONERS, VS. HONORABLE COURT OF APPEALS, FLORENCIA BULING VDA DE TINAGAN, DEMOSTHENES TINAGAN, JESUS TINAGAN, ZENAIDA T. JOSEP AND JOSEP…

In this petition for review on certiorari, petitioners
assail the decision^[1]
of the Court of Appeals dated April 8, 1994 which affirmed the decision of the
lower court ordering petitioners to peacefully vacate and surrender the
possession of the disputed properties to the private respondents.

Culled from the record are the following antecedent facts of this
case to wit:

On April 1, 1950, Victoria Sonjaconda Tinagan purchased from
Mauro Tinagan two (2) parcels of land situated at Barangay Bongbong, Valencia,
Negros Oriental.^[2]
One parcel of land contains an area of 5,704 square meters, more or less;^[3]
while the other contains 10,860 square meters.^[4]
Thereafter, Victoria and her son Agustin Tinagan, took possession of said
parcels of land.

Sometime in 1960, petitioners occupied portions thereof whereat
they built a copra dryer and put up a store wherein they engaged in the
business of buying and selling copra.

On June 23, 1975, Victoria died. On October 26, 1975, Agustin
died, survived by herein private respondents, namely his wife, Florencia Buling
Vda. de Tinagan and their children Demosthenes, Jesus, Zenaida and
Josephine, all surnamed Tinagan.

On December 24, 1976, petitioner Editha assisted by her husband
filed a complaint for partition and damages before the then Court of First
Instance of Negros Oriental, Branch 1, Dumaguete City, docketed as Civil Case
No. 6634, claiming to be an acknowledged natural child of deceased Agustin
Tinagan and demanding the delivery of her shares in the properties left by the deceased.^[5]

On October 4, 1979, the aforesaid case was dismissed by the trial
court on the ground that recognition of natural children may be brought only
during the lifetime of the presumed parent and petitioner Editha did not fall
in any of the exceptions enumerated in Article 285 of the Civil Code.^[6]

Petitioners assailed the order of dismissal by filing a petition
for certiorari and mandamus before this Court.^[7]
On August 9, 1982, this Court dismissed the petition for lack of merit.^[8]
Petitioners filed a motion for reconsideration but the same was denied on
October 19, 1982.^[9]

On March 29, 1988, private respondents filed a complaint for
recovery of possession against Editha and her husband Porferio Alviola before
the Regional Trial Court of Negros Oriental, Branch 35, Dumaguete City,
docketed as Civil Case No. 9148, praying, among others, that they be declared
absolute owners of the said parcels of land, and that petitioners be ordered to
vacate the same, to remove their copra dryer and store, to pay actual damages (in
the form of rentals), moral and punitive damages, litigation expenses and
attorney’s fees.^[10]

In their answer, petitioners contend that they own the
improvements in the disputed properties which are still public land; that they
are qualified to be beneficiaries of the comprehensive agrarian reform program
and that they are rightful possessors by occupation of the said properties for
more than twenty years.^[11]

After trial, the lower court rendered judgment in favor of the
private respondents, the dispositive portion of which reads:

WHEREFORE, premises considered, in Civil Case No. 9148, for
Recovery of Property, the court hereby renders judgment:

a) Declaring plaintiffs as the absolute owners of the land in
question including the portion claimed and occupied by defendants;

b) Ordering defendants Editha Alviola and her husband Porfirio
Alviola to peacefully vacate and to surrender the possession of the premises in
question to plaintiffs; Defendants may remove their store and dryer on the
premises without injury and prejudice to the plaintiffs;

c) Ordering defendants to pay the following amounts to the
plaintiffs:

1. P150.00 monthly rentals from April 1988 up to the time
the improvements in the questioned portions are removed;

2. P5,000.00 for attorney’s fees;

3. P3,000.00 for litigation expenses and to pay the
costs.

SO ORDERED.^[12]

Petitioners appealed to the Court of Appeals. On April 8, 1994,
the respondent court rendered its decision,^[13]
affirming the judgment of the lower court. Petitioners filed a motion for
reconsideration^[14]
but the same was denied by the respondent court in an order dated October 6,
1994.^[15]

Hence, this petition.

Petitioners aver that respondent court erred in declaring private
respondents the owners of the disputed properties. They contend that ownership
of a public land cannot be declared by the courts but by the Executive
Department of the Government, citing the case of Busante vs. Hon. Court of
Appeals, Oct. 20, 1992, 214 SCRA 774; and that the respondent court erred
in not considering that private respondents’ predecessor-in-interest, Victoria
Sonjaco Tinagan, during her lifetime, ceded her right to the disputed
properties in favor of petitioners.

Moreover, petitioners maintain that the respondent court erred in
holding that they were in bad faith in possessing the disputed properties and
in ruling that the improvements thereon are transferable. They claim that the
copra dryer and the store are permanent structures, the walls thereof being
made of hollow-blocks and the floors made of cement.

Private respondents counter that the question of whether or not
the disputed properties are public land has been resolved by overwhelming evidence
showing ownership and possession by the Tinagans and their
predecessors-in-interest prior to 1949. They further aver that they merely
tolerated petitioners’ possession of the disputed properties for a period which
was less than that required for extraordinary prescription.

The petition must fail.

Petitioners claim that the disputed properties are public lands.
This is a factual issue. The private
respondents adduced overwhelming evidence to prove their ownership and
possession of the two (2) parcels of land on portions of which petitioners
built the copra dryer and a store. Private respondents’ tax declarations and
receipts of payment of real estate taxes, as well as other related documents,
prove their ownership of the disputed properties. As stated previously in the narration of facts, these two (2)
parcels of land were originally owned by Mauro Tinagan, who sold the same to
Victoria S. Tinagan on April 1, 1950, as evidenced by a Deed of Sale,^[16]
wherein the two (2) lots, Parcels 1 and 2, are described.^[17]
Anent Parcel 1, tax declarations indicate that the property has always been
declared in the name of the Tinagans. The first, Tax Declaration No. 3335^[18]
is in the name of Mauro Tinagan. It was
thereafter cancelled by Tax Declaration No. 19534 effective 1968,^[19]
still in the name of Mauro. This declaration was cancelled by Tax Declaration
No. 016740 now in the name of Agustin Tinagan,^[20]
effective 1974, followed by Tax Declaration No. 08-421 in the name of Jesus
Tinagan, effective 1980;^[21]
and finally by Tax Declaration No. 08-816 in the name of Jesus Tinagan,
effective 1985.^[22]

With regard to Parcel 2, private respondents presented Tax
Declaration No. 20973 in the name of Mauro Tinagan, effective 1959,^[23]
Tax Declaration No. 016757, effective 1974;^[24]
Tax Declaration No. 08-405-C in the name of Agustin Tinagan, effective 1980^[25]
and Tax Declaration No. 08-794 in the name of Agustin Tinagan, effective 1985.^[26]
Moreover, the realty taxes on the two lots have always been paid by the private
respondents.^[27]
There can be no doubt, therefore, that the two parcels of land are owned by the
private respondents.

The record further discloses that Victoria S. Tinagan and her
son, Agustin Tinagan, took possession of the said properties in 1950,
introduced improvements thereon, and for more than 40 years, have been in open,
continuous, exclusive and notorious occupation thereof in the concept of
owners.

Petitioners’ own evidence recognized the ownership of the land in
favor of Victoria Tinagan. In their tax declarations,^[28]
petitioners stated that the house and copra dryer are located on the land of
Victoria S. Tinagan/Agustin Tinagan. By acknowledging that the disputed
portions belong to Victoria/Agustin Tinagan in their tax declarations,
petitioners’ claim as owners thereof must fail.

The assailed decision of the respondent court states that
“Appellants do not dispute that the two parcels of land subject matter of the
present complaint for recovery of possession belonged to Victoria S. Tinagan,
the grandmother of herein plaintiffs-appellees; that Agustin Tinagan inherited
the parcels of land from his mother Victoria; and that plaintiffs-appellees, in
turn, inherited the same from Agustin.”^[29]

Taking exception to the aforequoted finding, petitioners contend
that while the 2 parcels of land are owned by private respondents, the portions
wherein the copra dryers and store stand were ceded to them by Victoria S.
Tinagan in exchange for an alleged indebtedness of Agustin Tinagan in the sum
of P7,602.04.^[30]

This claim of the petitioners was brushed aside by the respondent
court as merely an afterthought, thus –

“Appellants’ claim that they have acquired ownership over the floor
areas of the store and dryer ‘in consideration of the account of Agustin
Tinagan in the sum of P7,602.04′ is not plausible. It is more of an ‘after-thought’ defense
which was not alleged in their answer. Although the evidence presented by them in support of this particular
claim was not duly objected to by counsel for appellees at the proper time and
therefore deemed admissible in evidence, an examination of the oral and
documentary evidence submitted in support thereof, reveals the weakness of
their claim.

“Appellant testified that the areas on which their store and dryer
were located were exchanged for the amount of P7,602.04 owed to them by
Agustin in 1967 (TSN, Hearing of April 14, 1989, p. 9); that he did not bother to execute a document
reflecting such agreement `because they were our parents and we had used the
land for quite sometime already they had also sold their copra to us for a long
time.’ (Id.) Yet, as earlier
discussed, the tax declarations in appellants’ answer show that even after
1967, they expressly declared that the parcels of land on which their store and
dryer were constructed, belonged to Victoria and Agustin (Exhs. 2-A, 2-B, 2-C,
3-A, 3-B). If appellants really
believed that they were in possession of the said particular areas in the
concept of owners, they could have easily declared it in said tax
declarations.”^[31]

Concededly, petitioners have been on the disputed portions since
1961. However, their stay thereon was
merely by tolerance on the part of the private respondents and their
predecessor-in-interest. The evidence
shows that the petitioners were permitted by Victoria Sanjoco Tinagan to build
a copra dryer on the land when they got married. Subsequently, petitioner
Editha Alviola, claiming to be the illegitimate daughter of Agustin Tinagan,
filed a petition for partition demanding her share in the estate of the
deceased Agustin Tinagan on December 6, 1976. However, the petition was dismissed since it was brought only after the
death of Agustin Tinagan. This Court dismissed the petition for certiorari
and mandamus filed by petitioner Editha Alviola on August 9, 1982. It
was on March 29, 1988, when private respondents filed this complaint for
recovery of possession against petitioners. Considering that the petitioners’
occupation of the properties in dispute was merely tolerated by private
respondents, their posture that they have acquired the property by “occupation”
for 20 years does not have any factual or legal foundation.

As correctly ruled by the respondent court, there was bad faith
on the part of the petitioners when they constructed the copra dryer and store
on the disputed portions since they were fully aware that the parcels of land
belonged to Victoria Tinagan. And,
there was likewise bad faith on the part of the private respondents, having
knowledge of the arrangement between petitioners and Victoria Tinagan relative
to the construction of the copra dryer and store. Thus, for purposes of
indemnity, Article 448 of the New Civil Code should be applied.^[32]
However, the copra dryer and the store, as determined by the trial court and
respondent court, are transferable in nature. Thus, it would not fall within the coverage of Article 448. As the noted civil law authority, Senator
Arturo Tolentino, aptly explains: “To
fall within the provision of this Article, the construction must be of
permanent character, attached to the soil with an idea of perpetuity; but if it
is of a transitory character or is transferable, there is no accession, and the
builder must remove the construction. The proper remedy of the landowner is an action to eject the builder
from the land.”^[33]

The private respondents’ action for recovery of possession was
the suitable solution to eject petitioners from the premises.

WHEREFORE, this petition should be, as it is hereby,
DISMISSED. The assailed decision
is hereby AFFIRMED.

SO ORDERED.

Regalado, (Chairman), Melo, Puno, and
Mendoza, JJ., concur.