GABRIEL ELANE, PETITIONER, VS. COURT OF APPEALS AND INOCENCIO V. CHUA, RESPONDENTS.

The decision promulgated on September 30, 1987 by respondent Court of Appeals in
CA-G.R. SP No. 09536,^[1]
which reversed the decisions of the Regional Trial Court^[2]
and, correlatively, the Municipal Trial
Court of Olongapo City,^[3]
is assailed in this petition for review on certiorari.

Private respondent Inocencio V. Chua
filed an action for forcible entry in the then City Court of Olongapo City for the eviction of petitioner Gabriel Elane from a portion of a parcel of land designated as
Block V, LC Project No. 14, Olongapo
City, BF Map LC 2427, which was the
subject of a permit to occupy issued to private respondent by the Bureau of
Forestry on August 16, 1961.  Private respondent alleges that on February 15, 1980, while visiting the
property, he discovered that petitioner was constructing a semi-concrete
building on a portion thereof, without his knowledge and consent.  The order made by private respondent upon
petitioner to desist therefrom was ignored by the
latter.^[4]
When his demand letter of March 1, 1980
to stop said construction was refused, private respondent filed an action for
forcible entry. ^[5]

In his answer, petitioner Elane claims
that he was granted a permit by the Bureau of Forest Development over a parcel
of land located at Upper Kalaklan, with an area of
360 square meters, more or less, designated as Block V, LC Project No. 14, Olongapo City, BF Map LC 2427, as allegedly evidenced by a
certification from the said bureau dated April 10, 1979; that he has been in
possession and occupation of that parcel of land continuously and
uninterruptedly since 1970, having originally erected a hut thereon which was
later replaced by a bungalow; and that the land has been declared for taxation
in his name and the real property taxes thereon paid by him for the years 1970
to 1979. ^[6]

On February 14, 1984, the Municipal Trial Court of Olongapo City rendered a decision dismissing the complaint
and which, on appeal, was affirmed in toto
by the Regional Trial Court of Olongapo City.

Thereafter, herein private respondent elevated the case on a
petition for review to respondent court which reversed the decisions of the two
courts a quo and rendered judgment ordering therein respondent Elane to remove or demolish the residential house or
building that he constructed on that part of the land in question, to vacate
and return possession of said
parcel of land to therein petitioner Chua and to pay said petitioner P5,000.00
by way of attorney’s fees, with the costs of suit.^[7]  A motion for reconsideration was denied on November 3, 1987.^[8]

In the present appeal, petitioner contends that the respondent
court (1) gravely abused its discretion in giving due course to the petition
for review notwithstanding the fact that the decision sought to be reviewed had
already become final and executory; and (2) gravely
erred in holding that “the instant petition must be resolved on the all
important issue of priority of possession instead of the issue as to who is the
legal possessor of the lot subject of the litigation”.^[9]

Concordant with the claim of private respondent, the respondent
court found the following relevant facts established by the evidence of record:

“On August 16, 1961, Ordinary Residence Permit No. 1675 was
issued by the Bureau of Forestry authorizing the petitioner to occupy four
hectares of public forest land situated in Sitio
Upper Kalaklan, Olongapo, Zambales (Exhibit A), on which he constructed a warehouse
and a gasoline station pursuant to permits issued to him by the said bureau
(Exhibits C, C-1, 1 and J), which on February 10, 1970 were declared for
purposes of taxation in his name (Exhibits E and E-1) and taxes due thereon
were paid (Exhibits F-4 and F-5).

“On January 19, 1977,
the parcel of land in question, designated as Block V, LC Project No. 14, Olongapo City,
BF Map LC. 2427, containing an area of 42,086 square meters, covered by the
sketch (Exhibit G), having been declared alienable and disposable, the
petitioner filed an application with the Bureau of Lands to purchase it under
Miscellaneous Sales Application No. (111-4) 9019 (Exhibit M).

“On March 1, 1980,
the petitioner wrote to the respondent advising him to stop construction of the
building that he was putting up within the parcel of land in question (Exhibit
H).

On March 6, 1980, the respondent having refused to desist from
constructing the building that he was putting up, the petitioner filed the
instant complaint for forcible entry in the then City Court of Olongapo.”^[10]

We initially take
up the first error imputed by petitioner which, although the records do not
show that the same was raised in the petition for review in respondent court, deserves a corresponding resolution
since it indirectly attributes a jurisdictional defect.

Petitioner claims that a copy of the decision of the Regional
Trial Court of
Olongapo City
was sent by registered mail to the counsel of private respondent at his given
address.  However, the envelope was
supposedly returned to the court when counsel for private respondent allegedly
failed to claim the same after a second notice was made on July 10, 1985. 
Petitioner then contends that, pursuant to Section 3, Rule 13 of the
Rules of Court, the decision of the regional trial court became final on July
15, 1985, private respondent not having seasonably filed either a motion for
reconsideration or a notice of appeal.^[11]

We are not persuaded by this argument belatedly raised by
petitioner.  It is incumbent upon a party
who relies upon constructive service under Section 5 of Rule 13 of the Rules to
prove that the first notice of the registered letter was sent and delivered to
the addressee, as the presumption that official duty has been regularly
performed does not apply to such a situation.^[12]
Here, the assertions in the petition of the facts stated in the next preceding
paragraph are unsubstantiated.  In the
absence of such proof in the record, the disputable presumption of completeness
of service does not arise.  Furthermore,
not only has petitioner failed in such requisite proof but, as earlier stated, the
records do not show that such issue was raised or proved by him in the
respondent court when, the petition for review was filed with and was pending
therein.  The principle of estoppel by laches, which is in
the interest of a sound administration of the laws, consequently bars this
objection from being raised by petitioner for the first time and at this late stage.^[13]

It is next alleged that respondent court gravely erred in adjudicating the case on the basis
of priority of physical possession instead of legal possession.

As already adumbrated, respondent court held that private
respondent was granted a residence permit over a lot with an area of 42,086
square meters by the Bureau of Forestry on August 16, 1961, and a permit to construct a warehouse and
gasoline station thereon by the then municipal government of Olongapo on October
1, 1963.^[14]
This residence permit, which was renewable every year, was not renewed after June 30, 1969 because it was stopped
by then Vice-President Fernando Lopez, although private respondent continued to
pay rental fees for the land until 1973.^[15]
Upon application by private respondent, the said lot was declared alienable and
disposable public land and released by the Bureau of Forest Development to the
Bureau of Lands in March, 1973. 
Thereafter, he filed a Miscellaneous Sales Application with the Bureau
of Lands on January 19, 1977
for the purchase of the said lot.^[16]
It likewise appears that private respondent declared the warehouse and gasoline
station for taxation purposes and paid taxes thereon in 1970 and 1971.^[17]

On the other hand, petitioner claims that he entered into and
took possession of the contested lot in 1970 pursuant to a permit granted to
him by the Bureau of Forest Development, as supposedly evidenced by a
certification from the latter dated April 10, 1979,^[18]
and a building permit and sanitary/plumbing permit issued for the construction
of his house thereon.^[19]
This is an egregious inaccuracy as aptly
observed by respondent court, thus:

“Said permits (Annexes A, B and C to answer) were not actually
introduced in evidence by the respondent
Elane in support of his allegations and defenses.  They may not, therefore, be considered at all
as evidence.  Besides, the certification
(Annex A to answer) do (sic) not attest to the issuance of any permit to occupy
the parcel of land in question in favor of the respondent Elane.  It merely certified to the fact that the
parcel of land in question ‘was found to be Alienable and Disposable
Land.’ And the building and
sanitary/plumbing permits (Annexes B and C to answer) could not have
established his possession of the parcel of land since 1970 because aside from
the fact that they bear no date of actual issuance, they were accomplished by
the applicant whose residence certificate appears to have been issued only on
January 5, 1979.  How then can it be
correctly concluded that based upon such certification and permits (Annexes A,
B and C to answer), the respondent Elane had entered
into and had taken possession of the parcel of land in question since 1970?

“Moreover, the survey of the parcel of land in question was
prepared for the respondent Elane only on February 25, 1979 (Exhibit 6). His
miscellaneous sales application was filed in the Bureau of Lands only on March 26, 1979 (Exhibit 7).  The lot and residential building constructed
thereon were declared for purposes of taxation only on October 18, 1979 and April 1, 1981 (Exhibits 4-A and 5).  The realty taxes due for 1970-73, 1974-78 and
1979 (Exhibit 8) and those due for the succeeding years were paid only on April
14, 1980, May 8, 1981 and March 16, 1982 (Exhibits 8-1 to 8-5).  Respondent Elane’s
possession based on those documents cannot, therefore, retroact as of
1970.”^[20]

Under these circumstances, We are convinced that private
respondent has priority of possession over petitioner whose entry into the
subject lot may be reckoned only as of 1979. There is no merit in the
suggestion that petitioner was authorized by the Bureau of Forest Development
to occupy the land by virtue of an alleged permit issued by said bureau.  A cursory examination of said document readily
shows that it is a mere certification that the lot claimed by petitioner is
part of the alienable and disposable land of the public domain.  Nowhere is it stated therein that petitioner
is allowed to take possession of the subject lot.  Furthermore, it is uncontroverted
that private respondent was issued a residence permit way back in 1961 which
entitled him to possession of the disputed land starting in the same year.

Petitioner, however,
submits that the expiration of private respondent’s permit in 1969, and its
non-renewal, deprived the latter of his possessory
right over and the corresponding right to eject petitioner from the
subject lot.  Petitioner argues that by
reason of the expiration of said permit, the right of possession over the land
reverted to the Bureau of Lands thereby vesting in said entity the sole right
to institute any forcible entry case over the land in question.

We likewise reject this
submission.

The respondent court expressly observed that while private
respondent’s permit to occupy the land may have expired in 1969, he remained in
physical possession thereof.  Since the
decisive issue is priority of possession and private respondent had been in
actual and continuous possession of the land since August 16, 1961, his material possession must be
protected in this ejectment case until a competent
court in an appropriate case determines which of the contending parties has the
better right of possession.^[21]

As tersely emphasized by respondent court, and correctly so,
“it is of no moment that petitioner’s right to occupy said parcel of land
by reason of the permit issued to him by the Bureau of Forestry has already
expired.  For, it is not whether he has a
legal right to possess it that is in issue; it is whether he is in actual
physical possession of it that is decisive in the instant case for forcible
entry.”^[22]

In sum, private respondent was in earlier possession of the
contested lot; his sales application preceded that of petitioner; his warehouse
and gasoline station already existed long before petitioner took possession of
the parcel of land in question; and he has been paying taxes and rental fees thereon since 1968.  As provided by the Civil Code –

“Art. 538.  Possession
as a fact cannot be recognized at the same time in two different personalities
except in the case of co-possession. 
Should a question arise regarding
the fact of possession, the present possessor shall be preferred; if there are
two possessors, the one longer in possession; x x x.”

Having been in prior continuous
possession, private respondent is preferentially entitled to occupy the land.

Petitioner’s intrusion upon the disputed premises can properly be
categorized as one effected through stealth. 
Where forcible entry was thus made clandestinely, the one-year
prescriptive period should be counted from the time private respondent demanded
that the deforciant desist from such dispossession
when the former learned thereof.^[23]
The records reflect that such discovery and prohibition took place on February 15, 1980, reiterated
thereafter in the demand letter of March
1, 1980, both to no avail. 
Consequently, the one-year period had not expired on March 6, 1980 when private respondent
filed the ejectment suit with the then City
Court of Olongapo City.

WHEREFORE, the judgment appealed from is hereby AFFIRMED in toto,
without pronouncement as to costs.

SO ORDERED.

Melencio-Herrera, (Chairman), Paras, Padilla, and Sarmiento, JJ., concur.

^[1]
Inocencio V. Chua vs. Hon. Alicia L. Santos,
et al.; penned by Justice Pedro A. Ramirez, with the concurrence of Justice
Oscar R. Victoriano, separate concurring opinions of
Justices Leonor Ines-Luciano
and Jesus M. Elbinias, and dissenting opinion of
Justice Fidel P. Purisima.

^[2]
Civil Case No. 102-0-84, Regional Trial Court, Branch LXXIII, Olongapo City,
presided over by Judge Alicia L. Santos.

^[3]
Civil Case No. 1959, Municipal Trial Court, Branch V, Olongapo City,
Judge Damaso B. Barquin,
presiding.

^[4]
Rollo, 35-36.

^[5]
Exhibit H; Rollo, 37.

^[6]
Rollo, 7-8.

^[7]
Ibid., 46.

^[8]
Ibid., 65-66.

^[9]
Ibid., 13,16.

^[10]
Ibid., 36-37.

^[11]
Ibid., 13-14.

^[12]
Barrameda vs. Castillo, 78 SCRA 4 (1977)

^[13]
Tijam, et al. vs. Sibonghanoy,
et al. 23 SCRA 29 (1968); Crisostomo, et al. vs.
Court of Appeals, et al., 32 SCRA 54 (1970); Libudan vs. Gil, et al., 45 SCRA 17 (1972).

^[14]
Rollo, 25.

^[15]
Ibid., 26, 28.

^[16]
Exhibit M; Rollo, 37.

^[17]
Exhibits E and E-1, F to F-6; Rollo, 38.

^[18]
Annex A, Answer in Civil Case No. 1959; Rollo,
44.

^[19]
Annexes B and C, ibid; ibid.

^[20]
Ibid., 44-45.

^[21]
Ibid., 43.

^[22]
Ibid., ibid; see Mediran vs.
Villanueva, et al., 37 Phil. 752 (1918).

^[23]
Vda. de Prieto vs.
Reyes, 14 SCRA 430 (1965); City of Manila
vs. Garcia, et al., 19 SCRA 413 (1967).