AURORA DEL BANCO, EVELYN DEL BANCO, FEDERICO TAIÑO, SOLEDAD TAIÑO, JOVENCIO TAIÑO, SAMSON TAIÑO, NOE TAIÑO, SOCORRO TAIÑO AND CLEOFAS TAIÑO, PETITIONERS, VS. INTERMEDIATE APPELL…

THIS IS A PETITION FOR REVIEW ON CERTIORARI BY WAY OF
APPEAL FROM:  (A) THE DECISION OF
RESPONDENT COURT OF APPEALS (INTERMEDIATE APPELLATE COURT)*
PROMULGATED ON MAY 17, 1985 IN
AC-G. R. CV NO. 70460, ENTITLED “ALEJANDRA PANSACOLA, ET AL.
VS. DOMEN VILLABONA DEL BANCO, ET AL.” WHICH REVERSED AND SET ASIDE
THE JUDGMENT** OF THE TRIAL COURT; AND (B) ITS
RESOLUTION OF OCTOBER 15, 1985 IN THE SAME CASE, DENYING PETITIONERS’ MOTION
FOR RECONSIDERATION OF THE AFOREMENTIONED DECISION AND THEIR SUPPLEMENT TO
MOTION FOR RECONSIDERATION.

THE DISPOSITIVE PORTION OF THE QUESTIONED DECISION (ROLLO, P. 97)
READS, AS FOLLOWS:

“ACCORDINGLY, THE
DECISION APPEALED FROM IS HEREBY SET
ASIDE INSOFAR AS IT DISMISSES THE COMPLAINT, AND ANOTHER ONE ENTERED –

(1)  DECLARING PLAINTIFFS-APPELLANTS AND
DEFENDANTS-APPELLEES, IN THEIR RESPECTIVE CAPACITIES AS DESCRIBED IN PAR. V OF
THE COMPLAINT, AS CO-OWNERS OF THE PROPERTY IN DISPUTE, BUT SUBJECT TO THE
FOUR-PART PRO–INDIVISO DIVISION ALREADY MADE BY SAID PROPERTY;

(2)  ORDERING THE CANCELLATION OF ALL CERTIFICATES
OF TITLE THAT MAY HAVE BEEN ISSUED TO ANY OF THE PARTIES HERETO; AND

(3)  ORDERING THE COMPLETE AND FINAL PARTITION OF
THE SUBJECT PROPERTY IN CONFORMITY WITH LAW.

FOR THIS PURPOSE, THIS CASE IS HEREBY REMANDED TO THE COURT OF
ORIGIN SO THAT A FINAL PARTITION SHALL BE MADE IN ACCORDANCE WITH SECTIONS 2, 3, ET. SEQ., RULE 69 OF THE RULES OF COURT.

LET A COPY
OF THIS DECISION BE FURNISHED TO THE REGISTER OF DEEDS FOR THE PROVINCE OF
QUEZON.”

THE FACTS OF THE CASE ARE TAKEN FROM THE DECISION OF THE
APPELLATE COURT (ROLLO, P. 39) AS FOLLOWS:

IN A DOCUMENT EXECUTED IN THE MUNICIPALITY OF SAN RAFAEL,
BULACAN, ON FEBRUARY 11, 1859, THREE
BROTHERS, BENEDICTO PANSACOLA, JOSE PANSACOLA AND MANUEL PANSACOLA (KNOWN AS
FR. MANUEL PEÑA) ENTERED INTO AN AGREEMENT WHICH PROVIDED, AMONG OTHERS:

(1)  THAT THEY WILL PURCHASE FROM THE SPANISH
GOVERNMENT THE LANDS COMPRISING THE ISLAND OF CAGBALITE WHICH IS LOCATED WITHIN
THE BOUNDARIES OF THE MUNICIPALITY OF MAUBAN,
PROVINCE OF TAYABAS (NOW QUEZON) AND HAS AN APPROXIMATE AREA OF 1,600 HECTARES;

(2)  THAT THE LANDS SHALL BE CONSIDERED AFTER THE
PURCHASE AS THEIR COMMON PROPERTY;

(3)  THAT THE CO-OWNERSHIP INCLUDES DOMINGO ARCE
AND BALDOMERO ANGULO, MINORS AT THAT TIME REPRESENTED BY THEIR FATHER, MANUEL
PANSACOLA (FR. MANUEL PEÑA) WHO WILL CONTRIBUTE FOR THEM IN THE PROPOSED
PURCHASE OF THE CAGBALITE ISLAND;

(4)  THAT WHATEVER BENEFITS MAY BE DERIVED FROM THE
ISLAND SHALL BE SHARED EQUALLY BY THE CO-OWNERS IN THE FOLLOWING
PROPORTION:  BENEDICTO PANSACOLA – 1/4 SHARE; JOSE PANSACOLA – 1/4 SHARE; AND, DOMINGO ARCE AND
BALDOMERA ANGULO – 2/4 SHARES
WHICH SHALL BE PLACED UNDER THE CARE OF THEIR FATHER, MANUEL PANSACOLA (FR.
MANUEL PEÑA).

ON AUGUST 14, 1866, CO-OWNERS
ENTERED INTO THE ACTUAL POSSESSION AND ENJOYMENT OF THE ISLAND PURCHASED BY
THEM FROM THE SPANISH GOVERNMENT.  ON
APRIL 11, 1868 THEY AGREED TO
MODIFY THE TERMS AND CONDITIONS OF THE AGREEMENT ENTERED INTO BY THEM ON
FEBRUARY 11, 1859.  THE NEW AGREEMENT PROVIDED FOR A NEW
SHARING AND DISTRIBUTION OF THE LANDS, COMPRISING THE ISLAND OF CAGBALITE AND WHATEVER BENEFITS MAY
BE DERIVED THEREFROM, AS FOLLOWS:

“(A) THE FIRST ONE-FOURTH (1/4) PORTION SHALL BELONG TO DON BENEDICTO PANSACOLA;

(B)  THE SECOND ONE-FOURTH (1/4) PORTION SHALL BELONG TO DON JOSE PANSACOLA;

(C) THE THIRD ONE-FOURTH (1/4) PORTION SHALL HENCEFORTH BELONG TO THE CHILDREN OF THEIR
DECEASED BROTHER, DON EUSTAQUIO PANSACOLA, NAMELY:  DON MARIANO PANSACOLA; MARIA PANSACOLA AND DON HIPOLITO
PANSACOLA;

(D) THE FOURTH AND LAST ONE-FOURTH (1/4) PORTION
SHALL BELONG TO THEIR NEPHEWS AND NIECES (1)
DOMINGO ARCE, (2) BALDOMERA ANGULO, (3) MARCELINA
FLORES, (4) FRANCISCA FLORES (5) CANDELARIA DELA CRUZ, AND (6) GERVASIO PANSACOLA WHO, BEING
ALL MINORS, ARE STILL UNDER THE CARE OF THEIR BROTHER, MANUEL PANSACOLA (FR.
MANUEL PEÑA).  THE LATTER IS THE REAL
FATHER OF SAID MINORS.”

ABOUT ONE HUNDRED YEARS LATER, ON NOVEMBER 18, 1968, PRIVATE RESPONDENTS BROUGHT
A SPECIAL ACTION FOR PETITION IN THE COURT OF FIRST INSTANCE OF QUEZON, UNDER THE PROVISIONS OF RULE 69 OF THE RULES OF COURT, INCLUDING AS
PARTIES THE HEIRS AND
SUCCESSORS-IN-INTEREST OF THE CO-OWNERS OF
THE CAGBALITE ISLAND IN THE SECOND CONTRACT OF CO-OWNERSHIP DATED APRIL 11, 1968.  IN
THEIR ANSWER SOME OF THE
DEFENDANTS, PETITIONERS HEREIN, INTERPOSED SUCH DEFENSES AS PRESCRIPTION, RES
JUDICATA, EXCLUSIVE OWNERSHIP, ESTOPPEL AND LACHES.

AFTER TRIAL ON THE MERITS, THE TRIAL COURT RENDERED A DECISION* DATED NOVEMBER 6, 1981 DISMISSING THE COMPLAINT, THE DISPOSITIVE PORTION OF
WHICH READS AS FOLLOWS:

“WHEREFORE,
AND IN THE LIGHT OF ALL THE FOREGOING THIS COURT FINDS AND SO HOLDS THAT
THE CAGBALITE ISLAND HAS ALREADY BEEN PARTITIONED INTO FOUR (4) PARTS AMONG THE
ORIGINAL CO-OWNERS OR THEIR SUCCESSORS-IN-INTEREST.

JUDGMENT IS THEREFORE RENDERED FOR THE
DEFENDANTS AGAINST THE PLAINTIFFS DISMISSING THE COMPLAINT IN THE ABOVE
ENTITLED CASE.

CONSIDERING THAT THE CROSS CLAIMS FILED IN
THE ABOVE ENTITLED CIVIL CASE ARE NOT COMPULSORY CROSS CLAIMS AND IN ORDER THAT
THEY MAY BE LITIGATED INDIVIDUALLY THE SAME ARE HEREBY DISMISSED WITHOUT
PREJUDICE.

IT IS SO ORDERED.”

THE MOTION FOR RECONSIDERATION FILED BY THE PLAINTIFFS, PRIVATE
RESPONDENTS HEREIN, WAS DENIED BY THE TRIAL COURT IN AN ORDER DATED FEBRUARY 25, 1982 (RECORD ON APPEAL, P. 241).

ON APPEAL, RESPONDENT COURT REVERSED AND SET ASIDE THE DECISION
OF THE LOWER COURT (ROLLO, P. 117).  IT
ALSO DENIED THE MOTION FOR RECONSIDERATION AND THE SUPPLEMENT TO MOTION
FOR RECONSIDERATION FILED BY PRIVATE RESPONDENTS, IN ITS RESOLUTION DATED
OCTOBER 15, 1983 (ROLLO, P. 86).

INSTANT PETITION WAS FILED WITH THE COURT ON DECEMBER 5, 1985 (ROLLO, P. 12).  PETITIONERS JOSEFINA PANSACOLA, ET AL. HAVING
FILED A SEPARATE PETITION (G.R. No.
72620) ON THE SAME SUBJECT MATTER AND ISSUES RAISED IN THE INSTANT
PETITION, THE COUNSEL FOR PRIVATE RESPONDENTS FILED A CONSOLIDATED COMMENT ON
THE SEPARATE PETITIONS FOR REVIEW ON FEBRUARY 24, 1986 WITH THE FIRST DIVISION OF THE COURT (ROLLO, P. 119).  IT APPEARS THAT COUNSEL FOR PETITIONERS ALSO
FILED A CONSOLIDATED REPLY TO THE CONSOLIDATED COMMENT OF PRIVATE RESPONDENTS
AS REQUIRED BY THE SECOND DIVISION OF THE COURT (ROLLO, P. 151).  HOWEVER,
PETITIONERS FILED A SEPARATE REPLY IN THE INSTANT CASE ON FEBRUARY 18, 1987 (ROLLO, P. 168) AS REQUIRED
BY THE COURT IN A RESOLUTION OF THE SECOND DIVISION DATED NOVEMBER 24, 1986 (ROLLO, P. 160).

ON MAY 19, 1987, PRIVATE
RESPONDENTS IN THE INSTANT PETITION FILED A MANIFESTATION PRAYING FOR THE
DENIAL OF THE INSTANT PETITION IN THE SAME MANNER THAT G.R. No. 72620 WAS DENIED BY THE COURT IN ITS RESOLUTION DATED
JULY 23, 1986 (ROLLO, P.
151).  THEIR REJOINDER TO THE REPLY OF
PETITIONERS WAS FILED ON MAY 25, 1987
(ROLLO, P. 179).

ON JUNE 8, 1987, THE COURT RESOLVED TO GIVE
DUE COURSE TO THE PETITION
(ROLLO, P. 192).  THE MEMORANDUM OF PRIVATE RESPONDENTS WAS MAILED ON JULY 18, 1987 AND RECEIVED IN THE COURT ON JULY 29, 1987 (ROLLO, P. 112); THE
MEMORANDUM FOR PETITIONERS WAS MAILED ON AUGUST 18, 1987 AND RECEIVED IN THE COURT ON SEPTEMBER 7, 1987 (ROLLO, P. 177).

THE SOLE ISSUE TO BE RESOLVED BY THE COURT IS THE QUESTION OF
WHETHER OR NOT CAGBALITE ISLAND IS STILL UNDIVIDED PROPERTY OWNED IN COMMON BY
THE HEIRS AND SUCCESSORS-IN-INTEREST
OF THE BROTHERS, BENEDICTO, JOSE AND MANUEL PANSACOLA.

THE PANSACOLA BROTHERS PURCHASED THE ISLAND IN 1859 AS COMMON PROPERTY AND AGREED ON
HOW THEY WOULD SHARE IN THE BENEFITS TO BE DERIVED FROM THE ISLAND.  ON APRIL
11, 1868, THEY MODIFIED THE TERMS AND CONDITIONS OF THE AGREEMENT SO AS TO
INCLUDE IN THE CO-OWNERSHIP OF THE ISLAND THE CHILDREN OF THEIR DECEASED
BROTHERS EUSTAQUIO AND THE OTHER CHILDREN OF MANUEL PANSACOLA (FR. MANUEL PEÑA) WHO WERE COMMITTED IN
THE AGREEMENT OF FEBRUARY 11, 1859.  THE NEW AGREEMENT PROVIDED FOR A NEW
SHARING PROPORTION AND DISTRIBUTION OF THE ISLAND AMONG THE CO-OWNERS.

ON JANUARY 20, 1907, THE
REPRESENTATIVE OF THE HEIRS OF ALL THE ORIGINAL OWNERS OF CAGBALITE ISLAND
ENTERED INTO AN AGREEMENT TO PARTITION THE ISLAND, SUPPLEMENTED BY ANOTHER
AGREEMENT DATED APRIL 18, 1908.  THE CONTRACT DATED JANUARY 20, 1907 PROVIDES AS FOLLOWS:

“SA MAUBAN, TAYABAS, IKA 20
NG ENERO NG 1907 CAMING MGA QUINATAWAN NG MGA
IBANG COHEREDEROS NA HINDI CAHARAP, SA PULONG NA ITO, SA NASA NAMING LAHAT NA MAGCAROON NA NG CATAHIMICAN ANG
AMING-AMING CABAHAGUI SA PULONG KAGBALETE, SUMACATUID UPANG MAPAGTOOS ANG
HANGAHAN NG APAT NA SAPUL NA PAGCACABAHAGUI NITONG MANANG ITO, PAGCACAUSAP NA
NAMING LAHAT AT MAIHANAY AT MAPAGTALONAN ANG SAYSAY NG ISAT-ISA, AY CUSA NAMING
PINAGCASUNDUAN AT PINASIYA ANG NANGASOSONOD: 
–

UNA:  ANG MALAQUING CALUPAAN,
ALIS ANG LAHAT NA PACATAN AY BABAHAGUIN ALINSUNOD SA PAGCABAKI NA GUINAWA SA
CROQUIS NA NIYARI NG PRACTICO AGRIMENSOR DON JOSE GARCIA.

ICALAWA:  ANG LOMINGOY, DOON
ANG TUID NA GUHIT SA ILONG NG PAIT, AY PAGAAPATIN DING SINLAQUI AYON SA DATING
PAGKAKABAKI.

ICATLO:  CUNG MAGAWA NA ANG
TUNAY NA PLANO AT ICAPIT NA SA LUPA, PAGLALAGAY NG NADARAPAT NA MOJON, ANG
MASACUPAN NG GUHIT, SUMACATUID ANG CAINGIN AT PANANIM NG ISA NA NASACUPAN NG
PUCTO NA NOOCOL SA IBA, AY MAPAPASULIT SA DAPAT MAGARI, NA PAGBABAYARAN NITO
ANG NAGTANIM SA HALAGANG:  – BAWAT
CAPONONG NIOG NA NABUNGA, P1.00 ‘UN
PESO); CUNG ANG BIAS AY ABOT SA ISANG VARA, P0.50; CUNG BAGONG TANIM O LOCLOC, P0.50 ANG CAPONO.

ICAPAT:  ANG LAHAT NA PACATAN
AY BACOD NA PAGAAPATIN AT BAWAT BAHAGUI AY NOOCOL SA ISAT-ISA SA APAT NA SANGA
NG PAGANACANG NAGMANA.

ICALIMA:  UPANG ANG
NAIPATANIM NG BAWAT ISA AY MATAMA SA CANYA NG MAILAGAN ANG HIRAP NG LOOB NG
NAGATIKHA; AY PAGTOTOLONG-TOLONGAN NG LAHAT NAIBA NA MAHUSAY ANG DALAWANG
PARTES NA MAGCALAPIT NA MAPA AYONG TUMAMA, HANGANG MAY PAGLULUARAN, SA NAGSIKAP
AT MAOYANAM, MAIDACO SA LUGAR NA WALANG CAILANGANG PAG-USAPAN.

ICANIM:  ANG CASULATANG ITO,
CUNG MAPERMAHAN NA NA MAGCACAHARAP SAMPONG NG MGA IBANG COHEREDEROS NA
NOTIPICAHAN NITONG LAHAT NA PINAGCASUNDOAN AY MAHAHABILIN SA CAMAY NG AGRIMENSOR,
AMADEO PANSACOLA, UPANG CANYANG MAPANUSUGAN ANG MAIPAGANAP ANG DITOY NAOOTOS.

NA SA CATUNAYAN AT CATIBAYAN NG LAHAT NA NALALAGDA DITO, SA PAG
GALANG AT PAG GANAP DITO SA PAINGACAISAHAN, AY PUMERMA SAMPO NG MGA SACSING
CAHARAP AT CATANTO NGAYONG FECHA AYON SA ITAAS.”

THE CONTRACT DATED APRIL 18, 1908 PROVIDES AS FOLLOWS:

“SA MAUBAN, IKA 18 NG
ABRIL NG 1908, SA PAGCACATIPON
NG LAHAT NA FIRMANTES NITO AY PINAGCAISAHAN ITONG NANGASOSONOD:  –

UNA – PINAGTITIBAY ANG MGA PINAGCASUNDOAN SA ITAAS NOONG 20 NG ENERO NG 1907, LIBAN NA LAMANG SA MGA PANGCAT NA UNA AT ICAPAT AT TONGCOL
DOON PINASIYA NAMING BAHAGUININ NG HALOHALO AT PAPAREJO ANG CALUPAAN AT
PACATAN.

YCALAWA – SA PAGSUCAT NG AGRIMENSOR NA SI AMADEO AT PAGGAWA NG
PLANO AT DESCRIPCION AY PAGBABAYARAN SIYA NG SA BAWAT ISA NAOOCOL SA HALAGANG
ISANG PISO SA BAWAT HECTAREA.

ICATLO – ANG
CAUNTING PUCTO SA ‘MAYANIBULONG’ NA MAYCAINGIN NI G. ISIDRO ALTAMARINO, ASAWA NI RESTITUTA AY TUTUMBASAN NAMAN CAY
G. NORBERTO PANSACOLA SA LUGAR
NG DAPO CALAPIT NG PINANGALO NG GASING SUCAT.

ICAPAT – SA INILAHAD NA PLANO AY PINASIYA NANG ITOLOY AT UPANG MACA
PAGPAREHISTRO ANG ISAT ISA AY PINAGCAISAHANG MAGCACAGASTOS NA PAREPAREHO PARA
SA TABLANG PANGMOHON AT IBAT IBA PANG CAGASTUSAN.

SA CATUNAYAN AT CATIBAYAN AY CAMI, PUMIRMA.” (RECORD ON
APPEAL, P. 224)

THERE IS NOTHING IN
ALL FOUR AGREEMENTS THAT SUGGESTS THAT ACTUAL OR PHYSICAL PARTITION OF THE
ISLAND HAD REALLY BEEN MADE BY
EITHER THE ORIGINAL OWNERS OR THEIR HEIRS
OR SUCCESSORS-IN-INTEREST.  THE AGREEMENT
ENTERED INTO IN 1859 SIMPLY PROVIDES FOR THE SHARING OF WHATEVER BENEFITS CAN BE DERIVED FROM THE ISLAND.  THE AGREEMENT, IN FACT, STATES THAT THE
ISLAND TO BE PURCHASED SHALL BE CONSIDERED AS THEIR COMMON PROPERTY.  IN THE SECOND AGREEMENT ENTERED IN 1868 THE CO-OWNERS AGREED NOT ONLY ON
THE SHARING PROPORTION OF THE BENEFITS DERIVED FROM THE ISLAND BUT ALSO ON THE DISTRIBUTION OF THE ISLAND
– EACH OF THE BROTHERS WAS ALLOCATED A 1/4
PORTION OF THE ISLAND WITH THE CHILDREN OF THE DECEASED BROTHER,
EUSTAQUIO PANSACOLA ALLOCATED A 1/4 PORTION
AND THE CHILDREN OF MANUEL PANSACOLA (FR. MANUEL PEÑA) ALSO ALLOCATED A 1/4 PORTION OF THE ISLAND.  WITH THE DISTRIBUTION AGREED UPON EACH OF
THE CO-OWNER IS A CO-OWNER OF THE WHOLE, AND IN THIS SENSE, OVER THE WHOLE HE
EXERCISES THE RIGHT OF DOMINION, BUT HE IS AT THE SAME TIME THE SOLE OWNER OF A
PORTION, IN THE INSTANT CASE, A 1/4 PORTION
(FOR EACH GROUP OF CO-OWNERS) OF THE ISLAND WHICH IS TRULY ABSTRACT, BECAUSE
UNTIL PHYSICAL DIVISION IS EFFECTED SUCH PORTION IS MERELY AN IDEAL SHARE, NOT
CONCRETELY DETERMINED (3 MANRESA, CODIGO CIVIL, 3RD ED., PAGE 486, CITED
IN LOPEZ VS. CUAYCONG, 74 PHIL. 601; DE LA CRUZ VS. CRUZ, 32 SCRA 307 [1970]; FELICES VS.
COLEGADO, 35 SCRA 173 [1970]; DULTRA
VS. CFI, 70 SCRA 465 [1976]; GATCHALIAN
VS. ARLEGUI, 75 SCRA 234 [1977]).

IN THE AGREEMENT OF JANUARY 20,
1907, THE HEIRS THAT WERE REPRESENTED AGREED ON HOW THE ISLAND WAS TO BE
PARTITIONED.  THE AGREEMENT OF APRIL 18, 1908 WHICH SUPPLEMENTS THAT OF
JANUARY 20, 1907 REVEALS THAT AS OF
THE SIGNING OF THE 1908 AGREEMENT
NO ACTUAL PARTITION OF THE ISLAND HAD AS YET BEEN DONE.  THE SECOND AND FOURTH PARAGRAPHS OF THE
AGREEMENT SPEAKS OF A SURVEY YET TO BE CONDUCTED BY A CERTAIN AMADEO AND A PLAN
AND DESCRIPTION YET TO BE MADE.  VIRGILIO
PANSACOLA, A SON OF THE SURVEYOR NAMED AMADEO WHO IS REFERRED TO IN THE
CONTRACT DATED APRIL 18, 1908 AS
THE SURVEYOR TO WHOM THE TASK OF SURVEYING CAGBALITE ISLAND PURSUANT TO SAID
AGREEMENT WAS ENTRUSTED, HOWEVER, TESTIFIED THAT SAID CONTRACTS WERE NEVER
IMPLEMENTED BECAUSE NOBODY DEFRAYED THE EXPENSES FOR SURVEYING THE SAME (RECORD
ON APPEAL, P. 225).

PETITIONERS INVOKE RES JUDICATA TO BAR THIS ACTION
FOR PARTITION IN VIEW OF THE DECISION OF THE COURT IN G.R. No. 21033, “DOMINGO ARCE VS. MARIA VILLABONA,
ET AL.,” 21034, “DOMINGO ARCE VS. FRANCISCO PANSACOLA, ET AL.,”
AND 21035, “DOMINGO ARCE
VS. EMILIANO PANSACOLA, ET AL.” PROMULGATED ON FEBRUARY 20, 1958 (ROLLO, P. 141 AND BRIEF FOR
DEFENDANTS-APPELLEES, P. 87 APPENDIX
I), WHEREIN THE COURT SAID:

“CONSIDERING THE FACTS THAT HE WAITED FOR A PERIOD OF NEARLY 23 YEARS AFTER THE RETURN FROM HIS
DEPORTATION BEFORE TAKING ANY POSITIVE ACTION TO RECOVER HIS PRETENDED RIGHT IN
THE PROPERTY IN QUESTION, GIVES GREAT CREDIT, IN OUR OPINION, TO THE DECLARATION
OF THE WITNESSES FOR THE DEFENSE (A) THAT THE ORIGINAL PARCEL OF LAND WAS
PARTITIONED AS THEY CLAIM, AND (B) THAT THE PLAINTIFF HAD DISPOSED OF ALL THE
RIGHT AND INTEREST WHICH HE HAD IN THE PORTION WHICH HAD BEEN GIVEN TO
HIM.”

THE ISSUE IN THE AFOREMENTIONED CASE WHICH WERE TRIED TOGETHER IS
NOT WHETHER THERE HAS ALREADY BEEN A PARTITION
OF THE CAGBALITE ISLAND.  THE ACTIONS
WERE BROUGHT BY THE PLAINTIFF TO RECOVER POSSESSION OF THREE DISTINCT PARCELS
OF LAND, TOGETHER WITH DAMAGES.  IN FACT THE WORD “PARTITION” WAS USED IN
THE METAPHYSICAL OR IDEAL SENSE (NOT IN ITS PHYSICAL SENSE).

COMMENTING ON THE ABOVE RULING OF THE COURT IN CONNECTION WITH
THE INSTANT CASE, THE RESPONDENT COURT SAID:

“CONCEDEDLY, THE SUPREME COURT DECISION IN G.R. Nos. 21033-35 (EXB. X) DID USE OR
EMPLOY THE WORD ‘PARTITION.’ A CAREFUL
READING OF THE SAID DECISION WILL, HOWEVER, REVEAL, AND WE SO HOLD, THAT THE
EMPLOYMENT OR USE OF THE WORD ‘PARTITION’ THEREIN WAS MADE NOT IN ITS TECHNICAL
AND LEGAL MEANING OR SENSE ADVERTED TO ABOVE, BUT, RATHER IN ITS IDEAL,
ABSTRACT AND SPIRITUAL SENSE.  THIS IS
(AT) ONCE EVIDENT FROM THE BARE STATEMENT IN SAID DECISION TO THE EFFECT THAT
THE PROPERTY WAS DIVIDED INTO FOUR PARTS, WITHOUT ANY REFERENCE TO THE SPECIFIC
PARTS OF THE PROPERTY THAT MAY HAVE BEEN ADJUDICATED TO EACH OWNER.  THERE BEING NO SUCH REFERENCE IN THE DECISION
AND IN THE JUDGMENT AFFIRMED THEREIN TO THE ADJUDICATION OF SPECIFIC AND
DEFINITE PORTIONS OF THE PROPERTY TO EACH CO-OWNER, THERE IS A CLEAR AND
LOGICAL INFERENCE THAT THERE WAS INDEED NO ADJUDICATION OF SPECIFIC AND
DEFINITE PORTIONS OF THE PROPERTY MADE TO EACH CO-OWNER.”

IT MUST BE ADMITTED THAT THE WORD “PARTITION” IS NOT
INFREQUENTLY USED BOTH IN POPULAR AND TECHNICAL PARLANCE (FULE VS. FULE, 52
PHIL. 750 (1929]).  FOR PURPOSES OF THE
AFOREMENTIONED CASE, EVIDENTLY THE COURT USED THE WORD “PARTITION” TO
REFER TO THE DISTRIBUTION OF THE CAGBALITE ISLAND AGREED UPON BY THE ORIGINAL OWNERS AND IN THE LATER
AGREEMENTS, BY THE HEIRS AND THEIR
SUBSEQUENT SUCCESSORS-IN-INTEREST THERE NEED NOT BE A PHYSICAL PARTITION; A
DISTRIBUTION OF THE ISLAND EVEN IN A STATE OF INDIVISO OR WAS SUFFICIENT IN
ORDER THAT A CO-OWNER MAY VALIDLY SELL HIS PORTION OF THE CO-OWNED PROPERTY. 
THE SALE OF PART OF A PARTICUAR LOT THUS CO-OWNED BY ONE CO-OWNER
WAS WITHIN HIS RIGHT PRO-INDIVISO
IS VALID IN ITS ENTIRETY (PAMPLONA VS. MORETO, 96 SCRA 775 [1980]) BUT HE MAY NOT CONVEY A PHYSICAL PORTION
WITH BOUNDARIES OF THE LAND OWNED IN COMMON
(MERCADO VS. LIWANAG, 5 SCRA 472
[1962]).  DEFINITELY, THERE WAS NO
PHYSICAL PARTITION OF THE ISLAND IN 1859.  NEITHER
COULD THERE HAVE BEEN ONE IN 1894 BECAUSE
THE MANNER OF SUBDIVIDING THE ISLAND WAS
ONLY PROVIDED FOR IN THE LATER
AGREEMENTS ENTERED INTO BY THE HEIRS IN 1907
AND 1908.  THERE WAS A DISTRIBUTION
OF THE ISLAND IN 1868 AS AGREED
UPON BY THE ORIGINAL CO-OWNERS IN THEIR AGREEMENT OF APRIL 11, 1868. 
ANY AGREEMENT ENTERED INTO BY THE PARTIES IN 1894 COULD BE NO
MORE THAN ANOTHER AGREEMENT AS TO THE DISTRIBUTION OF THE ISLAND AMONG THE
HEIRS OF THE ORIGINAL CO-OWNERS AND THE
PREPARATION OF A TENTATIVE PLAN BY A PRACTICAL SURVEYOR, A MR. JOSE GARCIA, MENTIONED IN THE FIRST PARAGRAPH
OF THE 1907 AGREEMENT,
PREPARATORY TO THE PREPARATION OF THE REAL PLAN TO BE PREPARED BY THE SURVEYOR
AMADEO, MENTIONED IN THE AGREEMENT OF
APRIL 18,
1908.

WHAT IS IMPORTANT IN THE COURT’S RULING IN THE THREE
AFOREMENTIONED CASES IS THAT, THE FACT THAT THERE WAS A DISTRIBUTION OF THE ISLAND AMONG
THE CO-OWNERS MADE THE SALE OF DOMINGO ARCE OF THE PORTION ALLOCATED TO HIM
THOUGH PRO-INDIVISO, VALID.  HE THUS
DISPOSED OF ALL HIS RIGHTS AND INTERESTS IN THE PORTION GIVEN TO HIM.

IT IS NOT DISPUTED THAT SOME OF THE PRIVATE RESPONDENTS AND SOME
OF THE PETITIONERS AT THE TIME THE ACTION FOR PARTITION WAS FILED IN THE TRIAL
COURT HAVE BEEN IN ACTUAL POSSESSION AND ENJOYMENT OF SEVERAL PORTIONS OF THE
PROPERTY IN QUESTION (ROLLO, P. 148).  THIS DOES NOT PROVIDE ANY PROOF THAT THE ISLAND IN QUESTION HAS ALREADY
BEEN ACTUALLY PARTITIONED AND CO-OWNERSHIP TERMINATED.  A CO-OWNER
CANNOT, WITHOUT THE CONFORMITY OF THE OTHER CO-OWNERS OR A JUDICIAL DECREE OF
PARTITION ISSUED PURSUANT TO THE PROVISION OF RULE 69 OF THE RULES OF COURT (RULE
71 OF THE OLD RULES), ADJUDICATE TO HIMSELF IN FEE SIMPLE A DETERMINATE
PORTION OF THE LOT OWNED IN COMMON, AS HIS SHARE THEREIN, TO THE EXCLUSION OF
OTHER CO-OWNERS (SANTOS JR. VS. BUENCONSEJO, 14 SCRA 407 [1965]; CARVAJAL VS. COURT OF APPEALS, 112 SCRA 237 [1982]).  IT IS A BASIC PRINCIPLE IN THE LAW OF
CO-OWNERSHIP BOTH UNDER THE PRESENT CIVIL CODE AS IN THE CODE OF 1889 THAT NO INDIVIDUAL CO-OWNER CAN CLAIM ANY DEFINITE PORTION THEREOF (DIVERSIFIED CREDIT
CORPORATION VS. ROSADA, 26 SCRA 470 [1968]).  IT IS THEREFORE OF NO MOMENT THAT SOME OF THE
CO-OWNERS HAVE SUCCEEDED IN SECURING CADASTRAL TITLES IN THEIR NAMES TO SOME
PORTIONS OF THE ISLAND OCCUPIED BY THEM (ROLLO,
P. 10).

IT IS NOT ENOUGH THAT THE CO-OWNERS AGREE TO SUBDIVIDE THE
PROPERTY.  THEY MUST HAVE A SUBDIVISION
PLAN DRAWN IN
ACCORDANCE WITH WHICH THEY TAKE ACTUAL AND
EXCLUSIVE POSSESSION OF THEIR
RESPECTIVE PORTIONS IN THE PLAN AND TITLES ISSUED TO EACH OF THEM ACCORDINGLY
(CARO VS. COURT OF APPEALS, 113 SCRA 10
[1982]).  THE MECHANICS OF ACTUAL
PARTITION SHOULD FOLLOW THE PROCEDURE LAID DOWN IN RULE 69 OF THE RULES OF COURT (MAGALLON VS. MONTEJO, 146 SCRA 282 [1986]).

NEITHER CAN SUCH ACTUAL POSSESSION AND ENJOYMENT OF SOME PORTIONS
OF THE ISLAND BY SOME OF THE PETITIONERS HEREIN BE CONSIDERED A REPUDIATION OF
THE CO-OWNERSHIP.  IT IS UNDISPUTED THAT
THE CAGBALITE ISLAND WAS PURCHASED BY THE ORIGINAL CO-OWNERS AS A COMMON
PROPERTY AND IT HAS NOT BEEN PROVEN THAT THE ISLAND HAD BEEN PARTITIONED AMONG
THEM OR AMONG THEIR HEIRS.  WHILE THERE
IS CO-OWNERSHIP, A CO-OWNER’S POSSESSION OF HIS SHARE IS CO-POSSESSION WHICH IS
LINKED TO THE POSSESSION OF THE OTHER CO-OWNERS (GATCHALIAN VS. ARLEGUI, 75 SCRA 234 [1977]).

FURTHERMORE, NO PRESCRIPTION SHALL RUN IN FAVOR OF A CO-OWNER AGAINST HIS CO-OWNERS OR
CO-HEIRS SO LONG AS HE EXPRESSLY OR IMPLIEDLY
RECOGNIZES THE CO-OWNERSHIP (VALDEZ VS. OLONGA, 51 SCRA 71 [1973]; TERO VS. TERO, 131 SCRA 100 [1984]).  CO-OWNERS
CANNOT ACQUIRE BY PRESCRIPTION THE SHARE OF THE OTHER CO-OWNERS, ABSENT A CLEAR REPUDIATION OF THE CO-OWNERSHIP
CLEARLY COMMUNICATED TO THE OTHER CO-OWNERS (MARIANO VS. DE VEGA, 148 SCRA 342 [1987]).

AN ACTION FOR PARTITION DOES NOT PRESCRIBE.  ARTICLE 403
OF THE OLD CIVIL CODE, NOW ARTICLE 497,
PROVIDES THAT THE ASSIGNEES OF THE CO-OWNERS MAY TAKE PART IN THE
PARTITION OF THE COMMON PROPERTY, AND ARTICLE 400 OF THE OLD CODE, NOW ARTICLE 494 PROVIDES THAT EACH CO-OWNER MAY DEMAND AT ANY TIME THE
PARTITION OF THE COMMON PROPERTY, A PROVISION WHICH IMPLIES THAT THE ACTION TO
DEMAND PARTITION IS IMPRESCRIPTIBLE OR CANNOT BE BARRED BY LACHES (BUDLONG VS. PONDOC, 79 SCRA 24 [1977]).  AN
ACTION FOR PARTITION DOES NOT LIE EXCEPT WHEN THE CO-OWNERSHIP IS PROPERLY
REPUDIATED BY THE CO-OWNER (JARDIN VS. HOLLASCO,
117 SCRA 532 [1982]).

ON JULY 23, 1986, THE
COURT THROUGH ITS SECOND DIVISION DENIED THE PETITION FOR THE REVIEW OF G.R. No. 72620, THE PETITION FOR REVIEW ON CERTIORARI SEPARATELY FILED BY JOSEFINA PANSACOLA
(ROLLO, P. 151).

PREMISES CONSIDERED,
THE INSTANT PETITION IS LIKEWISE DENIED
FOR LACK OF MERIT.

SO ORDERED.

Teehankee, C.J., Narvasa, Cruz, and
Gancayco, JJ., concur.

* PENNED BY ASSOCIATE JUSTICE DESIDERIO P. JURADO, CONCURRED IN BY JUSTICES CRISOLITO PASCUAL, JOSE
C. CAMPOS, JR. AND MA. ROSARIO
QUETULIO-LOSA.

** PENNED BY JUDGE FERNANDO A. SANTIAGO.

* RENDERED BY JUDGE FERNANDO A. SANTIAGO.