G.R. No. L-33213; June 29, 1979

ARTEMIO C. REYES and HILARION C. REYES, petitioners, vs.

HON. ANDRES STA. MARIA, Presiding Judge, Court of First Instance of Bulacan, Branch II, HILARIA SANTOS VDA. DE

LOPEZ and PILAR SANTOS, respondents.

E. M. Reyes for petitioner.

Ruben T. Reyes for respondents.

 TEEHANKEE, J.:

The Court sets aside the lower court's Order which dismissed petitioners-plaintiffs' complaint filed before it for recovery of the property in the possession of respondents-defendants and for declaration of ownership thereof as against said respondents' contrary claim of ownership on the ground of alleged lack of jurisdiction. Such action was clearly an accion publiciana for the recovery of the right to possess (possesion de jure) (if not an accion reivindicatoria) falling within the lower court's jurisdiction and not a mere action for detainer to recover physical possession (possession de facto) which would fall within the jurisdiction of the municipal court (if filed within one year after unlawful deprivation or withholding of possession) as erroneously held by the lower court in its dismissal order.

Petitioners as plaintiffs in the Court of First Instance of Bulacan had filed on April 1, 1968 an action which they termed as one to quiet title to a certain residential lot in Barrio San Sebastian, Hagonoy, Bulacan with an area of 368.5 square meters and to recover the possession thereof from respondents as defendants, 1 wherein they made the following averments:

2. That plaintiffs are owners pro-indiviso of a certain residential lot situated in the Barrio of San Sebastian, Hagonoy, Bulacan, and more particularly bounded and described as follows:

(Description omitted)

3. That through the tolerance and goodwill of plaintiffs, thru the intervention and entreaty of one Maximo Santos, father of the defendants, the latter used and occupied said land free of charge, under the following conditions, to wit: (a) that instead of paying rentals on the premises defendants undertook to pay the corresponding real estate taxes on the land; and (b) that said defendants will leave and vacate the premises anytime the plaintiffs so demand;

4. That sometime in February, 1968, plaintiffs verbally notified defendants that said plaintiffs were in need of the land, hence, said defendants should vacate and leave the same, but said defendants unreasonably refused at the same time claiming ownership of the property, and alleging further that they bought the same from a certain Pablo Aguinaldo;

5. That in order to quiet the title of ownership over this land, the plaintiffs have been compelled to institute the present action and, as a consequence, she suffered damages in the sum of One Thousand Pesos (P1,000.00), Philippine Currency, as attorney's fees;

6. That the defendants thru their acts stated above have therefore maliciously and unlawfully detained the land of plaintiffs since February, 1968; and

7. That for the unlawful occupation of the land, an estimate of Fifty (P50.00) Pesos monthly rental is hereby claimed as reasonable damages suffered by plaintiffs since February, 1968. 2

Petitioners accordingly prayed in their complaint for judgment (a) "declaring [them] to be the owners of the property described ... "; (b) "ordering the defendants to vacate the premises and return the possession of the same to plaintiffs;" (c) "ordering the defendants to pay plaintiffs, jointly and severally, the sum of Fifty Pesos (P50.00), Philippine Currency, rental or damages every month effective the first day of February, 1968, until the possession of the premises is finally restored in favor of plaintiffs;" and further ordering defendants to pay them (d) P1,000.00 attorney's fees and (e) costs of suit.

Upon respondents' motion to dismiss the complaint on the ground that "the court has no jurisdiction over the nature of the action or suit" and that the action embodied in petitioners' complaint "is actually one for ejectment or unlawful detainer. Consequently, the case falls within the original exclusive jurisdiction of the inferior court or municipal court" as against petitioners? opposition that "plaintiffs' complaint is principally one to quiet title to property, the question of possession being merely reduced to an incidental issue," the lower court issued its appealed order of August 15, 1968, finding the motion to dismiss to be "well founded" and dismissing the case "for lack of jurisdiction".The lower court reasoned that:

A perusal of the actual averments of facts in the complaint do not reveal any allegation of ultimate facts which could sufficiently support an action to quiet title. Upon the other hand, it is plain that the allegations of facts are only constitutive of an action for unlawful detainer. The allegation in paragraph 5 of said complaint 'that in order to quiet the title of ownership over this land, the plaintiffs have been compelled to institute the present action ... is not sufficient by itself to consider this case as an action for quieting title under Article 476 of the New Civil Code. Neither does the prayer of said complaint asking that the plaintiffs be declared the owners of the property in question constitute a cause of action.

Hence, the present petition for review and setting aside of the dismissal order, which the Court finds to be meritorious. The lower court was clearly in error in issuing its dismissal order on its mistaken notion "that the allegations of facts are only constitutive of an action for unlawful detainer" since the complaint shows on its face that respondents' refusal to deliver the possession of the property was due to their adverse claim of ownership

of the same property and their counter-allegation that they had bought the same from a certain Pablo Aguinaldo, and, therefore, petitioners' action was clearly one for recovery of their right to possess the property (possession de jure) as well as to be declared the owners thereof as against the contrary claim of respondents.

As restated by the late Chief Justice Moran: "There are three kinds of actions for the recovery of possession of real pro. property, namely, (1) the summary action for forcible entry or detainer (denominated accion interdictal under the former law of procedure, Ley de Enjuiciamiento Civil) which seeks the recovery of physical possession only and is brought within one year in the justice of the peace court; (2) the accion publiciana which is for the recovery of the right to possess and is a plenary action in an ordinary civil proceeding in a Court of First Instance; and (3) accion de reivindicacion which seeks the recovery of ownership (which of course includes the jus utendi and the jus fruendi also brought in the Court of First Instance. 3

It has been said that "(T)he only issue in forcible entry and detainer cases is the physical possession of real property possession de facto and not possession de jure If plaintiff can prove a prior possession in himself, he may recover such possession even from the owner himself. Whatever may be the character of his prior possession, if he has in his favor priority of time, he has the security that entitles him to stay on the property until he is lawfully ejected by a person having a better right by either accion publiciana or accion reivindicatoria. 4 Petitioners' action was not merely for recovery of possession de facto. Their action was clearly one of accion publiciana for recovery of possession de jure if not one of accion reivindicatoria for declaration of their ownership of the land.

As reaffirmed by the Court in the analogous case of Aguilon vs. Bohol 5

petitioners action is at least "an accion publiciana, which action 'correspondent al que tiene derecho a la possession, contra el que posee sin derecho o' con titulo menos firme para que se ponga la cosa en poder del actor con todas las accesiones, frutos ets' (I Enciclopedia Juridica Espanola 450)," and such accion publiciana or the plenary action in an ordinary civil proceeding to determine the better and legal right to possess (independently of title) clearly falls within the jurisdiction of the Courts of First Instance and not of the Municipal Courts. The Court further underscored therein "that an action for recovery of possession is an urgent matter which must be decided promptly to forestall breaches of peace, violence or even loss of life and, therefore, the court should act swiftly and expeditiously in cases of that nature.

Petitioners, therefore, correctly filed their accion publiciana before the lower court as against respondents! claim that they should instead have filed a summary action for detainer in the municipal court. Having been fully apprised of respondents' refusal to surrender possession and their contrary claim of ownership of the same property, petitioners properly filed their accion publiciana with the Court of First Instance to avoid getting enmeshed in what would certainly have been another jurisdictional dispute, since they could reasonably foresee that if indeed they had filed a summary action for illegal detainer instead in the municipal court,

respondents would then have contended, contrary to their present claim, that the municipal court is without jurisdiction over the detainer case by virtue of their contrary claim of ownership of the property. 6

ACCORDINGLY, judgment is hereby rendered, setting aside the lower court's dismissal order of August 15, 1968 and the case is remanded to respondent Court of First Instance with instructions to expedite the proceedings and trial and determination thereof on the merits. With costs against respondents. This decision is immediately executory.

Makasiar, Fernandez, Guerrero, De Castro and Melencio-Herrera, JJ., concur.

G.R. No. L-14889; April 25, 1960

NORBERTO LOPEZ, ET AL., petitioners, vs.

HON. AMADO SANTIAGO, ETC., ET AL., respondents.

Magno, Estacio and Association for petitioners.Felix D. Soriano for respondents.

CONCEPCION, J.:

This is an original action for a writ of certiorari and mandamus.

Petitioners Norberto Lopez and Gregorio Lopez Jr., were plaintiffs in an action for forcible entry, docketed as Civil Case No. 55 of the Justice of the Peace Court of Alcala, Pangasinan. Respondent herein, except respondent Judge Honorable Amando S. Santiago, were the defendants therein. In due course said court rendered judgment on July 3, 1958, which was amended on July 16, 1958, sentencing the aforementioned to vacate the land in dispute and to pay to Norberto and Gregorio Lopez P100 a month from May 28, 1958 until the return of the land to the latter, plus P5.00, the value of a tree destroyed by said defendants, and attorney's fees. The defendants appealed to the Court of First Instance of Pangasinan presided over by respondent Judge, in which the case was docketed as Civil Case No. U-221 thereof. Sometime before October 14, 1958, Norberto and Gregorio Lopez filed with the latter court a motion for the executive of the aforementioned judgment, owning to the failure of the defendants to pay or deposit the amount of said monthly rental or compensation. By an order dated October 14, 1958, the motion was granted.

Prior thereto, or on October 1, 1958 said defendants had moved for the dismissal of the case upon the ground that the subject-matter of litigation is a public land; that an investigation was then being conducted by the Bureau of Lands, in connection with a free patent application, filed by said defendants, covering the property in dispute, and a protest or opposition thereto filed by Norberto and Gregorio Lopez; and that all administrative remedies should first be exhausted by the latter before seeking recourse in civil courts. On November 10, 1958, respondent Judge issued an order denying the motion to dismiss, but reconsidering and setting aside said order of October 14, 1958 and holding in view of the administrative

proceedings pending in the Bureau of Lands. A reconsideration of his last order having been denied by respondent Judge, the present case was instituted by Norberto and Gregorio Lopez, with the prayer that judgment be rendered.

(a) setting aside the order of the respondent Judge of November 10, 1958, in Civil Case No. U-221 of the Court of First Instance of Pangasinan insofar as it reconsider and set aside the previous order of execution of the judgment of the Justice of the Peace Court of Alcala, Pangasinan, with respect to the possession of the land involved in the litigation;

(b) ordering the execution of the judgment of the Justice of the Peace Court of Alcala, Pangasinan in Civil Case No. 55 of said court, not only with respect to the damages adjudicated therein but also with respect to the possession of the parcel of land involved in the litigation;

(c) ordering the respondent Judge to proceed with the hearing on the merits of the case; and

(d) condemning respondents Jose Nato, et als. to pay the costs.

It is well settled in the jurisdiction that, when the decision of a justice of the peace or municipal court in the forcible entry case is adverse to the defendant, and the latter has appealed therefrom, but fails, during the pendency of appeal, to pay the amount of the rental due from time to time under the contract or the reasonable value of the use and occupation of the premises, under the conditions set forth in Section 8, Rule 72 of the Rules of Court, it is the mandatory duty of the court of first instance to order the execution of the judgment appealed from (Arcilla vs. Del Rosario, 74 Phil., 445; Cunanan vs. Rodas, 78 Phil. 800). Yet, respondent Judge revoked the order for the execution of the aforementioned judgment of the Justice of the Peace Court of Alcala, despite the failure of the main respondents herein, as defendants in the case above referred to, to make the payment required in said section 8 of Rule 72, upon the following ground;

It appearing that an order for the issuance of a writ of execution was issued by this Court on October 14, 1958, on the premise that the land in dispute is a private land and in view of the fact that the attention of this Court was called for the first time in the instant motion to dismiss that the land is a public land, the decision of the inferior court can not be executed, although the same becomes final, because the Director of Lands has direct executive control of the disposition and management of public lands. (Sec. 4, Commonwealth Act No. 141; Hernandez, et al. vs. Clapiz, et al., No. L-6812, March 26, 1956). Hence the order for the issuance of a writ of execution issued on October 14, 1958 is hereby reconsidered and set aside insofar as the restoration of the possession of the land in question is concerned.

Respondent Judge thus seems to be under the impression that Rule 72 of the Rules of Court, relative to forcible entry cases, is applicable only to

private lands, and that decision rendered against the defendants in such cases may not be ordered executed, the provisions of said Rule to the contrary notwithstanding, when the property involved is a public land. This view fails to consider in its true light the philosophy underlying the law on forcible entry cases. Commenting thereon, former Chief Justice Moran has the following to say:

. . . the action for forcible entry and detainer is of statutory origin. Its purpose regardless of the actual condition of the title to the property, is that the party in peaceable and quiet possession shall not be turned out by strong hand, violence or terror. In affording this remedy of restitution the object of the statutes is to prevent breaches of the peace and criminal disorder which would ensue from the withdrawal of the remedy, and the reasonable hope such withdrawal would create that some advantage must accrue to those persons who, believing themselves entitled to the possession of property, resort to force to gain possession rather than to some appropriate action in the courts to assert their claim. Such is the philosophy at the foundation of all action of forcible entry and detainer which are designed to compel the party out of possession to respect and resort to the law alone to obtain what he claim is his.

It has been held that the determination of the respective right of rival claimants to public land is different from the determination of who has the actual physical possession or occupation with a view to protecting the same and preventing disorder and breaches of the peace. A judgment of the court ordering restitution of the possession of a parcel of land to the actual occupant, who has been deprived thereof by another through the use of force or in any other illegal manner, can never be "prejudicial interference" with the disposition or alienation of public lands. On the contrary, if courts were deprived of jurisdiction over the cases involving conflicts of possession, the threat of judicial action against breaches of the peace committed on public lands would be eliminated, and a state of lawlessness would probably be produced between applicants, occupants or squatters, where force or might, not right or justice would rule. (Comments on the Rule of Court by Moran, Vol. 2 [1957 ed.], pp. 284-285; emphasis ours.)

In other words, public interest, public policy and public order demand that the party in peaceful possession of a land, independently of whether it is private in the nature or part of he public domain, be not ousted therefrom by means of force, violation or intimidation, regardless of the quality of his alleged right to the possession thereof, and that, whoever claims to have a better title or right thereto should seek, from the proper authorities, the legal remedies established therefor, instead of taking the law into their hands.

In view of the foregoing, the order of respondent Judge, dated November 10, 1958, insofar only as it reconsiders and sets aside the aforementioned order of October 14, 1958, directing execution of the judgment of the Justice of the Peace Court of Alcala, is hereby annulled and said order of

October 14, 1958, is, accordingly, reinstated, with costs against the main respondent herein. It is so ordered.

Paras, C.J., Bengzon, Montemayor, Bautista Angelo, Labrador and Barrera, JJ., concur.

G.R. No. L-3621; May 23, 1951

DOMINGO T. DIKIT, petitioner, vs.

RAMON A. YCASIANO, ETC. and CONSOLIDATED INVESTMENTS BUILDING, INC., respondents.

Lorenzo Sumulong and Antonio C. Masaquel for petitioner.Jesus S. Nava for respondent Consolidated Investments Bldg., Inc.

FERIA, J.:

This is a special civil action of certiorari against the respondents based on the ground that the respondent Judge of the Municipal Court of Manila acted in excess of the court's jurisdiction in issuing a writ of preliminary injunction, upon a petition ex parte of the respondent Consolidated Investments Bldg. Inc., as plaintiff, against the petitioner as defendant in the civil action or case No. 9708 of the said municipal court to eject the latter from the premises leased to him by the former. In said writ the respondent judge ordered that said defendant, his attorneys, representatives, agents and employees refrain from entering or making use of the lobby and mezzanine of the Consolidated Investments Building at Plaza Goiti, Manila.

There is no question or dispute between the parties and they both agree that if the action instituted by the respondent Consolidated Investments Bldg. Inc. against the petitioner Domingo T. Dikit in said civil case No. 9708 were of forcible entry, the respondent Judge did not act in excess of the court's jurisdiction in issuing said preliminary injunction under section 3, Rule 72 of the Rules of Court; but if it were of unlawful detainer, the respondent judge acted in excess of the court's jurisdiction and, therefore, the writ of preliminary injunction issued must be set aside as null and void (Piit vs. De Lara and Velez, 58 Phil., 765, 767; Sevilla vs. De los Santos,* 46 Off. Gaz., Supp. [11], p 138). Section 1, Rule 72 of the Rules of Court, which defines and distinguishes forcible entry from unlawful detainer, provides:

SECTION 1. Who may institute proceedings, and when. — Subject to the provisions of the next succeeding section, a person deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, or a landlord, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied, or the legal representative or assigns of any such landlord, vendor, vendee, or other person, may, at any time within one year after

such unlawful deprivation or withholding of possession bring an action in the proper inferior court against the person or persons unlawfully withholding or depriving of possession, or any person or persons claiming under them, for the restitution of such possessions, together with damages and costs.

Applying the above quoted provisions to the present case, we are of the opinion, and so hold, that the facts alleged in the complaint filed in said case No. 9708, constitute an action of unlawful detainer and not of forcible entry, and therefore, the respondent judge acted in excess of the Municipal Court of Manila's jurisdiction in issuing the writ of preliminary injunction complained of. The pertinent parts of the complaint reads as follows:

That with the aforementioned representations and assurances given to herein plaintiff as a basis, defendant had applied for the lease of the lobby and mezzanine of the Consolidated Investments Building located at the Plaza Goiti, City of Manila, and within the jurisdiction of this Honorable Court, under the basic conditions of constructing the partitions that will separate the lobby from the side entrances of the building, to pay an advance rental of P30,000 applicable to the last six months under a proposed 5-year lease-contract, and to pay an advance the current monthly rental of P5,000 from the time that the construction of the separating walls or partitions is completed.

x x x           x x x           x x x

That by reason and on the strength of said undertaking of the defendant, the defendant succeeded in getting the possession of the lobby and mezzanine of the Consolidated Investments Building, proceeded with the construction of the separating walls or partitions mentioned above and carried out of there modelling work that said defendant would require to put the premises question in condition to be used by "The Bank of Manila" which, the said defendant had assured the plaintiff, will start operating early in July, 1949.

That the monthly rental of P5,000 would accrue and become payable in advance within the first five days of each month upon completion of the construction of the separating walls or partitions above.

x x x           x x x           x x x

That having failed to obtain the proper license to operate his proposed "The Bank Of Manila", the defendant on September 1, 1949, had relinquished and turned over to the plaintiff the lobby and mezzanine of the Consolidated Investments Building, and said defendant had accepted the position of Vice-President of the proposed "The Bank of Manila" under a new group of capitalists.

x x x           x x x           x x x

That subsequent thereafter defendant regained possession of the lobby and mezzanine of the Consolidated Investments Building by

representing to the plaintiff that he (the defendant) was able to obtain the cooperation of certain Filipino residents of Hawaii who were ready to capitalize his proposed "The Bank of Manila" and that said capitalists were willing to pay to herein plaintiffs advance rental of P10,000 applicable to the last months under a 5-year lease-contract, at the same rate of P5,000 per month. . . ..

xxx             xxx             xxx.

That defendant, notwithstanding the several extensions of time requested by him, not only has failed to pay the advance of rental promised by him, but also failed and refused to pay unto the plaintiff the current rentals corresponding to the months of October and November, 1949, at the rate of P5,000 monthly, notwithstanding the repeated and persistent demands made on him by the plaintiff for at least five days prior to the filing of the complaint.

That plaintiff likewise has demanded of defendant that the letter vacate the lobby and mezzanine of the Consolidated Investments Building, which demand was made for more than five days prior to the filing of this complaint, but said defendant has failed and refused to comply with said friendly demand up to the present time.

The plaintiff's action was not of forcible entry, but of unlawful detainer, because according to said Section 1 of Rule 72, forcible entry is the act of depriving a person of the material or actual possession of a land or building or of taking possessions thereof by force, intimidation, threat, strategy or stealth, against the will or without the consent of the possessor; while unlawful detainer is the act of unlawfully withholding the possession of a land or building against or from a landlord, vendor, vendee or other persons, after the expiration or termination of the detainer's right to hold possession by virtue of a contract, express or implied. In forcibly entry, the possession of the intruder of person who deprives another of the possession of a land or building is illegal from the beginning, because his entry into or taking possession thereof is made against the will or without the consent of the former possessor. In unlawful detainer the possession of the detainer is originally legal or lawful but it becomes illegal only after the expiration or termination of his right to hold possession of the land or building after termination of the contract of lease for non-payment of the rents due or violation of the terms of said contract. In the present case, according to the above quoted complaint, the petitioner took possession of the part of the building leased, not against the will or without the consent, but with the express consent of the owner of possessor thereof by virtue of the contract of lease entered between leased was legal or lawful from the beginning, and it became illegal only after the termination of his right to continue in possession of said premises for having failed to pay the rents or other conditions of the contract of lease. The fact that the petitioner obtained the consent of the lessor to enter into said contract and take possession of the premises leased through false misrepresentation as alleged in the complaint, did not make petitioner's possession illegal from the beginning and the action instituted against him one of forcibly entry.

The stealth, strategy or fraud employed to deprive a person of his possession of a land or building under Section 1 of Rule 72, are the means used by the intruder to take possession of said land or building, without the consent or knowledge of the person in possession thereof. Such as, for instance, entering into the possession of a house taking advantage of the absence therefrom of its possessor or inhabitant, or after the latter has gone out of it because he was deceived or told by the intruder to go to another place at the request of one of his friends or relatives.

Besides, in an action or forcible entry, no previous demand to vacate is required by law before the filing of the action, while Section 2 of Rule 72 it requires that in an action of unlawful detainer by a landlord against his tenant, such demand is required, and compliance with this demand or condition is alleged in the last quoted paragraph of the complaint.

In view of the foregoing, the writ of preliminary injunction was issued by the respondent judge in excess of the court's jurisdiction, and therefore it is set aside with cost against the respondent Consolidated Investments Bldg. Inc. So ordered.

Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Jugo and Bautista Angelo, JJ., concur.

G.R. No. L-53788; October 17, 1980

PHARMA INDUSTRIES, INC., petitioner, vs.

HONORABLE MELITON PAJARILLAGA OF THE CITY COURT OF CABANATUAN CITY, NUEVA ECIJA, BRANCH II, SERGIA A. DEL

ROSARIO AND "JOHN DOE/S", respondents.

 

ABAD SANTOS, J.:

Certiorari to review the actuations of the respondent judge in Civil Case No. 8126 of the City Court of Cabanatuan which the plaintiff, the petitioner herein, initiated for the purpose of ejecting the private respondents from a piece of land.

In a "Decision" dated January 7, 1980, the respondent judge dismissed the case for lack of jurisdiction. A motion to reconsider the dismissal was denied, hence the present petition.

The facts and the law as understood by the respondent judge are set forth in his "Decision" which is hereby reproduced in full:

This is a complaint for Ejectment filed by the plaintiff against the defendant. The plaintiff in its complaint alleges that on November 12,

1977, the defendant Sergia A. del Rosario executed in favor of the plaintiff a Deed of Sale with Right to repurchase over a piece of land duly registered and situated at Cabanatuan City, together with all improvements and which land is covered with TCT No. 12481, now TCT No. 35940, that the defendant Sergia del Rosario executed to exercise her right of redemption in accordance with the Provision of Annex A, Deed of Sale with Right to Repurchase, which expired November 12, 1978, and despite notice to her, the plaintiff was constrained to file a petition for consolidation of ownership, Annex B; that on April 3, 1979, the Honorable Virgilio D. Pobre-Yñigo, promulgated a decision in favor of the plaintiff and against the defendant, declaring the plaintiff to be the full owner of the property and ordering the Register of Deeds of Cabanatuan City, to cancel the old title; and issue a new title, TCT No. L-35940 in the name of the plaintiff; that on June 8, 1979, the plaintiff sent a letter to the defendant and all person claiming ownership, to vacate the premises in question; that despite receipt of Annex E, by the defendant on June 13, 1979, she failed and refused and still fails to vacate the premises without justification.

The defendant filed her answer, admitting the allegations on Par. 1, 2, & 3, and denied the allegation in Par. 4, alleging that the defendant thru her representative Alfredo del Rosario verbally agreed to the counsel of the plaintiff, that after recomputation of the amount demanded being enormous and unconscionable, the latter should pay her obligation but contrary to the agreement to plaintiff thru counsel, did not honor the same and still continued the prosecution in this case, until the decision was rendered by this Court, to the damage and prejudice of the defendant, who is ready and able to pay her obligation; that defendant admitted the allegation in Par. 5 of the answer of the complaint, as far as the decision rendered for consolidation, but denies the rest of the allegations, because of the agreement which was dishonored by the plaintiff; that defendant also admitted the allegations in Par. 6, 7 & 8, but denies the allegation in Par. 9.

On November 28, 1979, the plaintiff filed a motion for judgment on the pleading, on the ground that the defendant admitted all the material averments of the complaint and does not tender at all an issue. The defendant filed an opposition to the motion of judgment on the pleading, and a motion to dismiss, on the ground that this Court has no jurisdiction, and that it is the Court of First Instance, which has jurisdiction over the action, (Roman Catholic Bishop of Cebu versus Mangaron, 6 Philippines 286, 291). The complaint filed by the plaintiff is for ejectment. There are three kinds of action in ejecting a person from the land. It is clear in the complaint that the plaintiff is intending to eject the defendant from the land under the kind of ejectment, forcible entry or detainer, but it must be alleged in the complaint prior possession of the land by the plaintiff. But in the complaint it is alleged that the defendant is in possession of the land and not the plaintiff, and therefore the complaint should be for recovery of the right to possess the land, and the action should be filed in the Court of First Instance and not in this Court. The three kinds of action are the following: (1) The summary action for forcible entry or detainer by denominated action interdictal, under the former law of procedure (Ley de Enjuiciamiento Civil) which seeks the recovery of only physical possession,

and is brought within one year in the Justice of the Peace Court; (2) The accion publiciana which is intended for the recovery of the right to possess and is a plenary action in an ordinary civil proceeding, before the Court of First Instance and (3) Action de revindication which seeks the recovery of ownership which of course included the Jus utendi and jus fruendi also brought in the Court of First Instance. Of these three kinds of action should be brought under No. 2 which is accion publiciana intended to recovery of the right to possess possession from the defendant, because it is the defendant who is in possession of the premises. The Court in its opinion, held that the complaint must be filed with the Court of First Instance of Nueva Ecija, because it is for a recovery of possession which is under the law, belong to the jurisdiction of the Court of First Instance of Nueva Ecija.

WHEREFORE, judgement is hereby rendered, dismissing this case.

We have to grant the petition. The proper remedy is ejectment under Rule 70 of the Rules of Court and not accion publiciana. Sec. 1 of said Rule provides:

SECTION 1. Who may institute proceedings, and when. — Subject to the provisions of the next succeeding section, a person deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, or a landlord, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld, after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied, or the legal representatives or assigns of any such landlord, vendor, vendee, or other persons, may, at any time within one (1) year after such unlawful deprivation or withholding of possession, bring an action in the proper inferior court against the person or persons unlawfully withholding or depriving of possession, or any person or persons claiming under them, for the restitution of such possession, together with damages and costs. The complaint must be verified.

It should be noted that the summary action provided above is one to obtain possession only, filed in a municipal court within one year after the unlawful deprivation or withholding of possession complained of has taken place. It should also be noted that the remedy provides for two distinct causes of action: (1) forcible entry in which the defendant's possession of the property is illegal ab initio, and (2) unlawful detainer wherein the defendant's possession was originally lawful but ceased to be so by the expiration of his right to possess.

The present case which is to obtain possession only is one for unlawful detainer because Sergia A. del Rosario, the vendor a retro, failed to repurchase the property and after the consolidation of title in favor of the vendee a retro had been confirmed, she refused to vacate the property upon demand and after her right to possess it had ceased to be lawful. That a demand to vacate was made on Sergia A. del Rosario on June 13, 1979, and the action to eject was filed on October 22, 1979, well within the one-year period, are borne by the record.

The mistake of the respondent judge in his belief that the cause of action is forcible entry wherein it is necessary to alleged prior possession and forcible deprivation thereof. But as stated above, the cause of action in this case is for unlawful detainer and it is sufficient to allege, as was done, that the defendant was unlawfully withholding possession from the plaintiff. (See 3 Moran, Comments on the Rules of Court, 302 [1970].)

Where the cause of action is unlawful detainer, prior possession is not always a condition sine qua non. This is especially so where a vendee seeks to obtain possession of the thing sold to him from the vendor. But if prior possession be insisted upon, Pharma Industries, Inc. had it before the suit for unlawful detainer was filed. Art. 531 of the Civil Code provides: "Possession is acquired by the material occupation of a thing or the exercise of a right, or by the fact that it is subject to the action of our will, or by the proper acts and legal formalities established for acquiring such right. (438a)" And according to Tolentino, "proper acts and formalities" refer "to judicial acts, or the acquisition of possession by sufficient title, Inter vivos or mortis causa, onerous, or lucrative. These are acts to which the law gives the force of acts of possession. Examples of these are donations, succession, whether intestate or intestate, contracts, such a sale with right of repurchase, judicial possession, execution of judgments, such as when a sheriff, pursuant to a decision or order of the court, places certain parties in possession of property, execution and registration of public instruments, and the inscription of possessory information titles." (II Civil Code of the Philippines, 246-247 [1972],)

Pharma Industries, Inc. acquired possession when Sergia A. del Rosario executed in its favor on November 12, 1977, the deed of sale with right to repurchase over the land in question and the vendee's title was confirmed upon failure of the vendor to repurchase the property. (Annexes A-1, A-2, and A-3, Petition.)

Private respondent states that subsequently on August 25, 1980, Civil Case No. 7326 was filed in the Court of First Instance of Nueva Ecija to declare the deed of sale with the right to repurchase executed by Sergia A. del Rosario in favor of Pharma Industries, Inc. as an equitable mortgage. Such a suit, however, is not a bar to the ejectment suit.

WHEREFORE, finding the petition to be meritorious, it is hereby granted and, as prayed for, the respondent judge is hereby ordered to take cognizance of Civil Case No. 8126 in his court and to resolve the petitioner's Motion for Judgment on the Pleadings. No special pronouncement as to costs.

SO ORDERED.

Barredo, Fernandez, and De Castro, JJ., concur.

BARREDO, J., (Chairman) concurring:

I concur in the judgment of ejectment on the ground that defendant's rights to possession was lost to plaintiff upon the expiration of her right to repurchase. The remedy in such a case is, of course, Deshaucio. But I

reserve my view as to the acquisition of possession by the plaintiff by virtue of the sale with pacto de retro.

AQUINO, J., concurring:

Respondent city judge was unaware of Republic Act No. 5967 which took effect on June 21, 1969 and which enlarged the jurisdiction of city courts.

Section 3(c) of that law provides that, in addition to the jurisdiction of city courts under section 88 of the Judiciary Law, they shall have concurrent jurisdiction with the Court of First Instance "in erection cases where the question of ownership is brought in issue in the pleadings. The issue of ownership shall therein be resolved in conjunction with the issue of possession"

BARREDO, J., (Chairman) concurring:

I concur in the judgment of ejectment on the ground that defendant's rights to possession was lost to plaintiff upon the expiration of her right to repurchase. The remedy in such a case is, of course, Deshaucio. But I reserve my view as to the acquisition of possession by the plaintiff by virtue of the sale with pacto de retro.

AQUINO, J., concurring:

Respondent city judge was unaware of Republic Act No. 5967 which took effect on June 21, 1969 and which enlarged the jurisdiction of city courts.

Section 3(c) of that law provides that, in addition to the jurisdiction of city courts under section 88 of the Judiciary Law, they shall have concurrent jurisdiction with the Court of First Instance "in erection cases where the question of ownership is brought in issue in the pleadings. The issue of ownership shall therein be resolved in conjunction with the issue of possession"

G.R. No. L-4478; May 27, 1953

VICENTE DY SUN, petitioner, vs.

RICARDO BRILLANTES and the COURT OF APPEALS, respondents.

Quisumbing, Sycip, Quisumbing & Salazar for petitioner.Manuel M. Cerrudo for respondent R. Brillantes.

BAUTISTA ANGELO, J.:

This is a petition for review of a decision of the Court of Appeals holding in effect the plaintiff has no cause of action to institute the present case for unlawful detainer against defendant.

On September 11, 1947, petitioner filed a complaint for unlawful detainer in the Justice of the Peace Court of Caloocan, Rizal, against respondent over a parcel of land situated in said municipality. The complaint was

dismissed on the ground that petitioner, being a Chinese citizens, has no right to acquire the land in question.

The Court of First Instance of Rizal affirmed the judgment of the justice of the Peace Court, from whose decision petitioner appealed to the Court of Appeals.

The Court of Appeals rendered judgment on November 29, 1950, affirming the decision of the lower court on two main grounds:

(1) Because "admittedly Brillantes was in possession of the land under dispute long before Vicente Dy Sun had supposedly acquired in through purchase", it is 'obvious that Dy Sun could not have been deprived of the possession of the land by force, intimidation, strategy, or stealth, as he never was in occupancy thereof"; and

(2) Because Dy Sun was a Chinese national, "he could not have acquired the land in question" and hence "he cannot validly allege that the possession of the land under dispute was being unlawfully withheld from him."

The issues now raised by petitioner are:

(a) Is prior physical possession a condition precedent before a vendee or other person against whom the possession of any land is unlawfully withheld after the expiration or termination of a right to hold possession can file an action for unlawful detainer? Can not the vendee contemplated by Rule 72 section 1 of the Rules of Court offer proof of his possession predicated upon a deed of sale?

(b) Where the fact of the sale is admitted, although the validity of the sale is questioned on the ground of the alienage of the vendee, cannot the question of possession be decided without first settling the question of title — so that court may continue to exercise jurisdiction over the detainer action filed by the vendee?

(c) May the defendant occupant in a detainer action question to validity of the sale on the ground of the alienage of the vendee, when either the vendor nor the State questions the validity of that sale?

(a) The Court of Appeals in effect holds that before petitioner could file the present case of unlawful detainer, the land in dispute, as otherwise he could not have been deprived for its possession by force, intimidation, threat, strategy, of sealth. This evidently is an error. Under the law (section 1, Rule 72), a person has two causes of action: (1) Forcible entry, in which defendant's possession] of the property is illegal from the beginning and (2) Unlawful detainer, wherein defendant's possession was originally lawful it became unlawful by the expiration of his right to possess (Moran, Vol. II. Comments on the Rules of Court, 1952, ed., p. 291). Under the first, the possession of the land by force, intimidation, threat, strategy, or stealth, and under the second, by a landlord, vendor, vendee or other person against whom the possession of the land is unlawfully withheld after the expiration or termination of the right to hold it (Rule 72, section 1, Rules of Court.

The action filed by petitioner is not forcibly entry but unlawful detainer as can be clearly inferred from the allegations of the complaint. Petitioner claims to have bought the land in question, a fact admitted by respondent. As such vendee, petitioner could not allege prior physical possession of the land as against respondent. In an action for unlawful detainer, such allegation is not required upon the theory that the vendee steps into the shoes of the vendor and succeeds to his rights and interests. In contemplation of law, vendee's possession is that of vendor. The Court of Appeals evidently confused the action of petitioner into one of forcible entry, which accounts for its mistake on the matter.

(b) Respondent admits the fact that the land in question was acquired by petitioner in the year 19044, but disputes its validity on the ground that petitioner is a Chinese citizen. Can respondent raise this issue in the present case?

The peculiar nature of these actions is that they are merely quieting processes, not processes to determine the actual title to a estate. They are summary actions intended to provide an expeditious means of protecting actual possession or right to possession of property. Title is not involved (Moran, Vol. II, Comments on the Rules of Court, 1952 ed., pp. 289-290). The only issue in these actions is the physical possession of the real property — possession de facto and not possession de jure.1 Physical possession being the only issue in a detainer case, may an allegation of ownership divest the justice of the peace court of its jurisdiction over the case? State — a different way, may respondent herein throw the case out by pleading that petitioner cannot acquire the property because he is a Chinese citizen?

The early decisions of this court on this matter were conflicting, but the conflict has now been settled. It has been held that, "in considering this problem the averments of the complaint and character of the relief sought are primarily to be consulted; but it would be a mistake to suppose than an action involves a question of title merely because the plaintiff may allege in his complaint that he is the owner of the land. Just as the plaintiff may introduce proof of his title in order to show the character of his prior possession, so he may allege ownership in himself as a material and relevant fact in the case, and the insertion of such an allegation in the complaint cannot by any possibility place the cause beyond the jurisdiction of the magistrate's court, provided it otherwise sufficiently appears that what the plaintiff really seeks is the restoration of the possession as against an intruder who has seized the property within the period of one year. Much less can the defendant in such an action defeat the jurisdiction of the magistrate's court by setting up title in himself. In this connection, it should be borne in mind that the factor which defeats the jurisdiction of the court of the justice of the peace is the necessity to adjudicate the question of title. The circumstance that proof of title is introduced at the hearing or that a claim of ownership is made by either or both of the parties is not material."2

On the other hand, while as a general rule a mere allegation by defendant claiming ownership of the property does not and cannot divest the court of its jurisdiction, yet if it appears during the trial that, by the nature of the

proof presented, the question of possession cannot properly be determined without settling that of ownership, then the jurisdiction of the court is lost and the action should be dismissed.3

The case before us can be determined without the necessity of passing upon the validity of the acquisition made by petitioner of the land in question. That issue should be determined in a separate action. That issue is not involved here. Respondent admits the fact of sale of the land to petitioner and unless that sale is disputed in a proper action and rendered invalid, petitioner is entitled to be recognized as owner or is entitled to the possession of the property. Respondent does not claim to be owner of the property. Admittedly, he is but a mere tenant who holds no definite tenure. Whether he is entitled to its possession, or is unlawfully withholding it, is now the issue in this case. This can be determined without looking into the validity of the sale affecting the property.

(c) Granting arguendo that the validity of the sale can now be disputed, can respondent do so? The answer is no for the simple reason that he is not a party to the sale either principally or subsidiary. (Article 1302 Spanish Civil; Code). And if it is true that the sale took place in 1944, as alleged in the complaint, then the same cannot be disputed under the ruling of the Krivenko case for at that time our Constitution was not in force [Cabanatuan, et al. vs. Uy Hoo et al., 88 Phil. 103; Peralta vs. Director of Prisons 75 Phil. 285]. Respondent claim cannot therefore be maintained even from this point of view.

Wherefore, the decision appealed from is hereby reversed. It is ordered that this case be remanded to the lower court for further proceedings, with costs against respondent Ricardo Brillantes.

Paras, C.J., Feria, Bengzon, Tuason, Montemayor, Reyes and Jugo, JJ., concur.

G.R. No. L-18535; May 30, 1962

VALDERRAMA LUMBER MANUFACTURER'S COMPANY, INC., Petitioner, vs. L.S. SARMIENTO CO., INC., HON. MACAPANTON

ABBAS and THE PROVINCIAL SHERIFF, Respondents.

REYES, J.B.L., J.: law library

Petitioner company applied for certiorari and prohibition with preliminary and/or preliminary mandatory injunction, alleging that the respondent Judge of the Court of First Instance of Davao committed a clear abuse of discretion amounting to lack or excess of jurisdiction in ordering the immediate execution of an appealed decision of the Justice of the Peace Court of Mabini, Davao. law library

It appears that on September 26, 1960, the petitioner, which has been occupying and using a parcel of foreshore land as its log pond in its logging business, was notified in writing by counsel for respondent L. S. Sarmiento & Company to vacate the premises, within ten days from receipt of notice, as the land has already been leased to it by the government. Not having

complied with the demand to vacate within the said period, respondent company instituted an action for ejectment against the petitioner in the Justice of the Peace Court of Mabini, Davao, which was docketed as Civil Case No. 33. Answering the complaint, the petitioner interposed the affirmative defense, among others, of lack of jurisdiction over the case because it had been in prior, peaceful, and open possession of the premises since 1958, more than one year before the suit was commenced, and that there was a conflict pending between the parties in the Bureau of Lands over the land which has not been finally resolved. law library

After trial, the Justice of the Peace Court of Mabini rendered judgment against the petitioner, and ordered it to vacate completely the premises within 5 days from receipt of a copy of the decision, to pay rentals in the amount of P239.82 a month, commencing from September 5, 1960 until surrender of possession of the land in question, and to pay the sum of P500.00 as attorney's fees and the costs. Upon motion for reconsideration by petitioner and/or new trial, the judgment was amended as follows:

a. To vacate the premises completely after the decision shall have become final or sooner upon immediate execution of the judgment pursuant to Section 8, Rule 72 of the Rules of Court. law library

In view of the foregoing, the motion for new trial and/or reconsideration is hereby denied and the decision rendered in the above-entitled case dated December 15, 1960, as modified, shall remain in full force and effect.

Not satisfied with the aforesaid judgment, petitioner company appealed to the Court of First Instance of Davao by filing on time its Notice of Appeal and a supersedeas bond, which was not objected to by opposing company and which was approved by the court in the amount of P2,178.74, "in order to stay execution of the decision rendered in the present case, dated December 15, 1960, in accordance with the provisions of Rule 72, Section 8, of the Rules of Court", and "conditioned for the performance of the judgment appealed from in case it be affirmed wholly or in part". Upon failure of petitioner to deposit within the first ten days of March, 1961 the adjudged monthly rent of P239.82 allegedly corresponding to the month of February, 1961, while the appeal was pending in the court of first instance, L. S. Sarmiento & Company filed a motion for immediate execution. Over the opposition of the petitioner, the court granted the motion, and respondent Provincial Sheriff complied with the writ of execution on June 21, 1961 (Exhibit 7). However, when respondent company received the Writ of Preliminary Injunction issued by the Supreme Court on June 29, 1961, it "allowed the petitioner the use" of the premises (par. 5 (b), p. 5, Answer). A motion to dissolve the said writ of this Court was filed on July 28, 1961. virtual law library

It is not disputed that the petitioner, on August 18, 1958, applied for a permit to use and occupy the log pond in question with the Bureau of Forestry; the District Forester of Davao having permitted petitioner company to construct a pier and log pond, it introduced improvements thereon and since November 3, 1958 had been depositing its log products in, and shipping them for export from, this pond. However, to clear doubts as to the jurisdiction of the Bureau of Forestry, petitioner also filed with the

Davao District Land Office a lease application for the same property on March 30, 1959. On January 6, 1960, petitioner was informed that the area was being surveyed by Bureau of Lands surveyors in connection with a lease application of the respondent; thereupon, petitioner protested to the Bureau of Lands, but its protest was not entertained by this office because respondent, as successful bidder at public auction, had already been awarded the right to lease the property, and that the petitioner's lease application with the Davao District Land Office on March 30, 1959, did not appear on the records of the Bureau of Lands in Manila. On August 30, 1960, the Republic of the Philippines, represented by the Secretary of Agriculture and Natural Resources, entered into a contract of lease over the property in dispute with the respondent company. virtual law library

The main issue in this case is whether or not the Justice of the Peace Court of Mabini, Davao, had jurisdiction over the ejectment case. virtual law library

Petitioner attacks the jurisdiction of said court on the ground that the complaint is insufficient leaving failed to allege prior possession of the land by the plaintiff; neither did it allege that the deprivation of possession by the defendant was done through any of the means mentioned in Section 1, Rule 72, of the Rules of Court, namely: force, intimidation, threats, strategy, or stealth; nor is there anything averred as to any contractual relationship, or priority thereof, between the parties over the land. virtual law library

Respondent counters by arguing that the prior possession of the land by petitioner was by tolerance of the Republic of the Philippines, and that respondent, as lessee of the land, stepped into the shoes of the lessor; and, inasmuch as tolerance of possession expires upon demand, which was made by lessee-company upon petitioner, the latter lost the right to possess the land, and, therefore, cannot thereafter withhold the possession of the land. virtual law library

The allegations in the complaint are what determine the jurisdiction of the court. (Baguioro vs. Barrios, 77 Phil. 120).

Here, the complaint for ejectment recites that the plaintiff is the lessee from the Republic of the Philippines of the foreshore land occupied by the defendant; that on September 5, 1960, plaintiff demanded of the defendant to vacate the premises within ten days from notice as it desired to use said parcel of land itself, being entitled to its possession and use thereof by reason of the aforementioned lease agreement; that defendant refused to vacate the premises, and that because of the "unwarranted acts of the defendant alleged hereinabove", plaintiff has been compelled to hire the services of counsel. Among other things, the complaint prayed for judgment, ordering the defendant "to vacate the premises in question and to restore the possession thereof to the plaintiff", and pay rental value "until the possession of the same is returned to the plaintiff". aw library

The complaint not only shows prior possession by petitioner herein, but does not allege that plaintiff (respondent herein) was deprived of possession by any of the means mentioned in section 1, Rule 72, of the Rules of Court namely: force, intimidation, threats, strategy, and stealth,

that would have made out a case for forcible entry (detentacion), nor that the right of possession of the petitioner had terminated, and occupancy was being unlawfully withheld so as to constitute unlawful detainer.

If the dispossession did not take place by any of these means, Courts of First Instance, not justice of the peace courts, have jurisdiction. (2 Moran 287, 1957 Ed.)

And, to make out a case of detainer (desahucio), the complaint must show that the withholding of possession, or the refusal to vacate, was unlawful, though not necessarily employing the terminology of the law (Co Tiamco vs. Diaz, 75 Phil. 672). On this jurisdictional requisite, the complaint under scrutiny is fatally silent. While it is true that the complaint uses the word "unwarranted", the way it was used is merely descriptive of the "acts of the defendant alleged hereinabove"; and thereinabove - (referring to the complaint), nowhere can be found any word or phrase describing the withholding of possession by the defendant as unlawful or of a similar tenor.al law library

The Justice of the Peace Court not having acquired jurisdiction over the case, the Court of First Instance of Davao did not acquire appellate jurisdiction.1 Hence, the respondents Judge of the Court of First Instance of Davao and Provincial Sheriff acted with grave abuse of discretion in issuing and enforcing the writ of execution.

With regard to the claim that the action to dispossess petitioner should have been instituted by the government, as owner-lessor, and not by the lessee, it should be observed that while under Article 1664 of the Civil Code a lessee has no direct action against an intruder who questions the lessee's right to possession and asserts it in himself, yet such issue can not be taken up now, as it does not affect the jurisdiction of the court, and the point does not appear to have been properly invoked before the respondent court. virtual law library

IN VIEW WHEREOF, judgment is hereby rendered, making permanent the writ of preliminary injunction issued by this Court on June 29, 1961, and declaring all proceedings had in connection with Civil Case No. 33 of the Justice of the Peace Court of Mabini, Davao, to be null and void for lack of jurisdiction. Costs against respondent Sarmiento & Co., Inc.

Padilla, Bautista Angelo, Concepcion, Barrera, Paredes, and Dizon, JJ., concur.

G.R. No. L-19572; July 30, 1965

DIONISIO B. GALLARDE, plaintiff-appellant, vs.

CESAR S. MORAN and LIBORIA L. MORAN, defendants-appellees.

Gaspar V. Tagalo and Ambrosio Calo Gallarde for plaintiff-appellant.Teofisto Guingona, Jr. for defendants-appellees.

BENGZON, C.J.:

The above-mentioned plaintiff prays for reversal of the order of the Honorable Montano A. Ortiz of Agusan dismissing his complaint for ejectment against Cesar S. Moran, et al.

The record shows that on June 2, 1961, Dionisio B. Gallarde filed such complaint for "ejectment and damages" in the Court of First Instance of Agusan, alleging substantially that: (a) in 1954, he permitted defendants to occupy a parcel of urban land belonging to him, because the latter promised to pay monthly rentals of P15.00, later reduced to P12.00 and then to P10.00; (b) that the rentals were payable in advance every first week of the month; (c) that defendants were irregular in their rental payments (d) that in view thereof, he notified them in January 1960 that beginning March of that year the rental would be 30 pesos a month and if defendants were not "agreeable" to the new condition, he "made the demand against defendant to vacate plaintiff's land"; (e) that afterwards, defendants failed to pay rentals for several months; (f) that he thereby suffered moral and actual damages; and (g) that defendants, "who in spite of plaintiff's demand against them to vacate the leased land refused to do so" should be required to pay exemplary damages. The complaint ended with the prayer: (1) that defendants be ejected from the parcel of land; and (2) that they be ordered to pay damages and costs.

The defendants filed a motion to dismiss on several grounds, one of which was based on the lack of cause of action, the complaint having made no allegation of a previous demand upon the defendants to vacate the premises in accordance with the provisions of sec. 2 of Rule 72 of the Rules of Court.

On this ground, the trial judge dismissed the complaint, as stated. The plaintiff appealed.

We find this appeal to have no merit. Sec. 2 of Rule 72 of the Rules of Court, in force in 1961, directs specifically that:

SEC. 2. Landlord to proceed against tenant only after demand. — No landlord, or his legal representative or assign, shall bring such action against a tenant, for failure to pay rent due or to comply with the conditions of his lease, unless the tenant shall have failed to pay such rent or to comply with such conditions for a period of fifteen days, or five days in the case of building, after demand therefor, made upon him personally, or by serving written notice of

such demand upon the person found on the premises, or by posting such notice on the premises if no persons be found thereon.

We have carefully, and repeatedly, read the complaint. It fails absolutely to make allegations establishing a cause of action conformably to the above Rule.

The only allegations of demand to vacate were those hereinabove described. The first was not a definite demand to vacate: it was conditional. It merely said that then plaintiff would demand that they vacate. There is no allegation that defendants refused to agree.

The second allegation of demand was quite indefinite. It inferentially says that plaintiff demanded that defendants vacate the land; but it does not say when. So the condition imposed by sec. 2 of Rule 72 that the demand be made at least fifteen days or five days before bringing the action has not been fulfilled. Again, the complaint does not allege that the demand to vacate was made for failure to pay rent or comply with conditions of the contract, 1 and again, the complaint does not allege facts to show that such "demand" had been made in the form required by sec. 2, viz., personally, or by serving written notice, or by posting such notice.

WHEREFORE, the appealed order is affirmed, with costs against appellant.

Bautista Angelo, Concepcion, Reyes, J.B.L., Paredes, Dizon, Regala, Makalintal, Bengzon, J.P., and Zaldivar, JJ., concur.

G.R. No. L-29275 January 31, 1972

FLORENTINO PANGILINAN, EDILBERTO PANGILINAN, GERMAN PANGILINAN, ALEJA PANGILINAN, FORTUNATO ANGELES,

FORTUNATO SANGIL, TROADIO SANTOS, VIRGINIA DAVID, CARLITO DAVID, EUGENIO DAVID, JUANITO PARAS and TOMAS LIWAG,

petitioners, vs.

THE HONORABLE ANDRES AGUILAR, Judge of the CFI of Pampanga, Branch III, MARCELO MENDIOLA, ALEJANDRO SUN, JOSE

PANGILINAN and BEATRIZ HENSON, respondents.

Jorge C. Salenga for petitioners.

Abel de Ocera for respondents.

 MAKASIAR, J.:p

This petition for certiorari and prohibition with preliminary injunction seeks to set aside the proceeding had by the respondent judge of the Court of First Instance of Pampanga, Branch III in connection with civil case no. 3221; to restrain the respondent judge from hearing the case in an appellate capacity and from issuing further writs of execution and/or demolition and instead to require him to hear the case under its original jurisdiction by directing the parties to file their appropriate pleadings therein; to restrain respondents Marcelo Mendiola, clerk of court branch III,

CFI of Pampanga, and city sheriff Alejandro Sun of the City Court of Angeles, or any of his deputies, from carrying into effect any writ of execution and/or demolition which the respondent judge may or might issue in the premises; and to order the respondents-spouses to pay the costs of the suit (p. 18, rec.).

In a resolution dated July 26, 1968, We required respondents to file their answer, not a motion to dismiss, within ten (10) days from receipt of notice; and with respect to the petition for preliminary injunction, to issue the writ prayed for, upon filing by petitioners of a bond in the amount of P1,000.00 (p. 70, rec.). Respondents subsequently filed the required bond and the same was approved by this Court on August 27, 1968 and the necessary writ was forthwith issued on same date (p. 100, rec.).

The records disclosed that herein private respondents (spouses Jose Pangilinan and Beatriz Henson) are plaintiffs in Civil Case No. C-54 for unlawful detainer which they filed on May 4, 1964 against herein petitioners (defendants in the lower court) involving a parcel of land — Lot No. 681 of the Cadastral Survey of Angeles City. Herein private respondents acquired said lot "by purchase from the Valdez family on August 15, 1963 (Exh. "B") and their ...Torrens Title No. 34805-R (Exh. "C"), issued on September 9, 1963." Thereafter, respondents had the corners of said lot relocated by a surveyor and discovered that herein petitioners were occupying portions of the lot where their respective houses were erected allegedly through tolerance by the previous owner, from whom respondents acquired the said lot. On March 22, 1964, the respondents gave notice to the herein petitioners to vacate the lot within 15 days therefrom but notwithstanding the expiration of said period, the petitioners refused and failed to leave the premises and remove their respective houses therefrom, which refusal led respondents to institute on May 4, 1964 the detainer case (see Annex "A", pp. 18, 19, and Annex "I", decision of the Angeles City Court, p. 37 rec.).

On December 7, 1964, defendants (herein petitioners) filed a motion to dismiss the complaint for illegal detainer on the grounds that the "(a) the City Court of Angeles has no jurisdiction over the nature of the suit or action; and (b) that the complaint states no cause of action," which motion was opposed by plaintiffs (herein private respondents) in a pleading dated December 10, 1964. In an order dated February 10, 1964, said motion to dismiss was denied by the judge of the Angeles City Court (p. 28, rec.).

On February 8, 1965, defendants filed a motion for reconsideration of the order denying the motion to dismiss, to which an opposition was filed by the plaintiffs on February 27, 1965. In an order dated April 30, 1965 the court denied the motion for reconsideration dated February 8, 1965, and forthwith set the case for hearing on May 10, 1965 at 9 o'clock in the morning (Annexes "E", "F" and "G", pp. 29-34, rec.).

On May 12, 1965, the defendants filed their answer to the complaint advancing the affirmative defense that the "land in question is part and parcel of the patrimonial property of the State, which they have occupied, used, and possessed, adversely, publicly, and uninterruptedly for a long period under a claim of ownership; hence by right of acquisitive

prescription, defendants have acquired ownership over the land in question" (Annex "H", pp. 35-36, rec.).

During the pendency of the detainer case in the Angeles City Court, defendants on May 28, 1965 filed a petition for certiorari and prohibition with injunction with the Court of First Instance of Pampanga, docketed as Civil Case No. 2784 (Annex "A", pp. 77-78, rec.) seeking to nullify the orders dated February 10, 1965 and April 30, 1965 of the city Judge of the Angeles City Court denying the motion to dismiss dated December 11, 1964 (Annex "B", pp. 20-26, rec.) and the motion to reconsider the same dated February 8, 1965 (Annex "E", pp. 29-32, rec.). On June 28, 1965 plaintiffs filed their answer to said petition (Annex "B", pp. 89-92, rec.) and on December 20, 1965, the Court of First Instance of Pampanga rendered judgment upholding the validity of the questioned orders of the Judge of Angeles City Court for the reason that the complaint states a cause of action and the same is within the jurisdiction of the Angeles City Court, and forthwith denied the petition (Annex "C", pp. 93-96, rec.). Defendants appealed to the Court of Appeals, docketed as CA-G.R. No. 37485-R, and on July 19, 1966 were required to file their printed brief, but on October 21, 1966 withdrew their appeal (Annex "D", p. 97, rec.), ( see pp. 72-73, rec.).

Thereafter, trial of the detainer case proceeded and on May 8, 1967, the Angeles City Court rendered judgment directing each of the defendants "to immediately vacate lot No. 381 by removing their houses thereon, ... to pay the plaintiffs the sum of P20.00 a month as reasonable rentals beginning with the month of August, 1963 until he or she finally vacates the premises, ... jointly and severally, to pay to the plaintiffs the sum of P300.00 as attorney's fees and ... to pay the cost of the suit" (Annex "1", pp. 37-38, rec.).

Within the period allowed by law, defendants perfected their unqualified appeal with the Court of First Instance of Pampanga, without filing a supersedeas bond. However, they claim in this present petition that their appeal was not for the purpose of recognizing the appellate jurisdiction of the Court of First Instance of Pampanga but for the purpose of elevating the case to said court for trial as if the case has been originally filed before it (see par. 16 of petition, p. 7, rec.).

In a pleading dated January 7, 1968, defendants themselves moved to dismiss their own appeal on the ground that the court of first instance has no appellate jurisdiction over the case for the reason that the Angeles City Court did not have original jurisdiction over the same, but at the same time making a manifestation that they would conform if the court of first instance decides to try the case under its original jurisdiction as one for accion publiciana pursuant to the provision of section 11 of Rule 40 of the Revised Rules of Court. Plaintiffs filed on January 12, 1968 an opposition to the motion to dismiss. In an order dated January 18, 1968, the respondent judge denied the motion for lack of merit (Annexes "J", "K" and "L", pp. 39-47, rec.).

On January 4, 1968, plaintiffs filed a motion for immediate execution, invoking Section 8, Rule 70 of the Revised Rules of Court (Annex "M", p. 48, rec.).

On January 17, 1968, defendants filed their opposition to the motion for immediate execution and contended that immediate execution of the judgment of the Angeles City Court cannot be granted for the reasons that the Angeles City Court did not have jurisdiction over the case, that the issue of title has been raised in the pleadings of both parties, and that the decision of the city court did not make a finding as to the existence of a contract between the parties (Annex "N", pp. 49-53, rec.).

On January 23, 1968, plaintiffs filed their reply to the opposition and contended that the failure of the defendants to file a supersedeas bond or to deposit on time the monthly reasonable rents fixed in the appealed judgment entitles them to immediate execution of the said appealed judgment; that the question of jurisdiction is already a decided matter since the same has been upheld by the Court of First Instance of Pampanga, which denied defendants' petition for certiorari and prohibition with injunction in Civil Case No. 2784, from which they appealed to the Court of Appeals, but which appeal they withdrew (CA-G.R. No. 37485-R); and that title could not be involved in this case for the reason that the land in question is one covered by a torrens title, which does not prescribe (Annex "O", pp. 54-55, rec.). On January 26, 1968, defendants filed their rejoinder to the plaintiffs' reply (Annex "P", pp. 56-60, rec.).

In an order dated May 16, 1968, the respondent judge ruled that plaintiffs are entitled to immediate execution of the appealed judgment of the Angeles City Court (Annex "Q", pp. 61-62, rec.); and the writ of immediate execution dated May 20, 1968 was issued, commanding the respondent sheriff of the Angeles City Court, or any of his deputies, to execute the appealed judgment of the Angeles City Court (Annex "R", p. 63, rec.).

On or about May 25, 1968, the respondent city sheriff of Angeles City, or his deputies, went to the houses of the defendants and attempted to enforce the writ of execution but the same was resisted by the defendants on the ground that the same was illegal and invalid (see par. 28 of petition, p. 12, rec.).

On June 12, 1968, defendants filed a motion for reconsideration of the orders dated January 18, 1968 and May 16, 1968, but the same was denied in an order dated July 3, 1968 (Annexes "S" and "T", pp. 64-67, rec.).

Hence, this petition.

I

It should be noted that herein petitioners had earlier filed in the Court of First Instance of Pampanga a petition for certiorari and prohibition with injunction (Civil Case No. 2784) raising the same grounds they interposed in this instant petition. The Court in said Civil Case No. 2784 denied said petition, holding that the complaint was one for unlawful detainer and not one for accion publiciana, and confirming, as a consequence, the jurisdiction of the Angeles City Court to try the case on the merits. Said decision of the Court of First Instance of Pampanga was appealed by the herein petitioners to the Court of Appeals; but the same was withdrawn by them on October 21, 1966 after they were required to file their printed brief. Such withdrawal rendered the said decision final and unappealable

as well as conclusive on herein petitioners and estops them from questioning anew the jurisdiction of the Angeles City Court in this present petition. 1 Aware of the adverse effect on their cause of their withdrawal of their appeal to the Court of Appeals, herein petitioners conveniently avoided making mention of the same in this present petition.

II

Petitioners insist that the Angeles City Court has no jurisdiction over the complaint filed against them by herein private respondents, because it does not allege facts showing that the action is for unlawful detainer as it fails to aver prior physical possession of the plaintiffs, any existing contractual relation between the plaintiffs and the defendants, and the filing of the complaint within one year from the time the possession of the defendants became illegal.

It is a settled principle that the complaint for unlawful detainer is sufficient if it alleges that the withholding of possession or the refusal to vacate is unlawful without necessarily employing the terminology of the law; 2 "and the other details like the one-year period within which the action should be brought, and the demand when required to be made by the Rules, must be proved but need not be alleged in the complaint" (emphasis supplied). 3

Such unlawful withholding of possession by herein petitioners of the lot in question is adequately alleged in paragraphs 3, 4, and 6 of the complaint for unlawful detainer filed by herein private respondents, which read thus: .

3. That after acquiring said lot, the plaintiffs had the corners relocated by a surveyor and discovered that the above-named defendants were occupying portion of said lot where their respective houses were erected by tolerance of the previous owners.

4. That on March 22, 1964, the plaintiffs gave notice to the said defendants to vacate the said lot within fifteen days but notwithstanding the expiration of said period, the defendants refused and failed (and) to leave the premises and remove their respective houses therefrom.

xxx xxx xxx

6. That the defendants knew that said lot now belong to herein plaintiffs and same is covered by torrens title, and their unjustified and unreasonable refusal to vacate the premises forced the plaintiffs to file this case and engage the service of counsel at an agreed fee of P500.00 as attorney's fees and costs. (pp. 18-19, rec.).

While possession by tolerance is lawful, such possession becomes illegal upon demand to vacate is made by the owner and the possessor by tolerance refuses to comply with such demand. 4 "A person who occupies the land of another at the latter's tolerance or permission, without any contract between them, is necessarily bound by an implied promise that he will vacate upon demand, failing which a summary action for ejectment is the proper remedy against him . ." 5 A formal agreement or contract of

lease between the vendor or vendee and herein petitioners, is not necessary before an unlawful detainer action can be filed against the latter. 6 .

Prior physical possession in the plaintiff is not an indispensable requirement in an unlawful detainer case brought by a vendee or other person against whom the possession of any land is unlawfully withheld after the expiration or termination of a right to hold possession and therefore the allegation of the same in the complaint, is not necessary. 7 As heretofore stated, possession of a possessor by tolerance becomes unlawful the moment the owner demands that he vacate the land.

The herein private respondent caused the relocation survey of the lot in August, 1963. On March 22, 1964, they notified herein petitioners to vacate the same and to remove their houses therefor. This fact of notice is admitted by herein petitioners in their answer to the complaint (Annex "H", p. 35, rec.). On May 4, 1964, they filed the complaint for illegal detainer. It is patent therefore that the complaint was filed within the one-year period from date of the demand to vacate.

Because physical or factual possession is the only issue in an illegal detainer case, mere claim of ownership does not divest the city or municipal court of its jurisdiction over such a case, 8 even if proof of title is submitted at the trial. 9

The Angeles City Court found that, aside from their bare claim of ownership and continuous possession, herein petitioners "have not presented any tangible or concrete evidence of their right to hold and possess the property in suit" (Annex "I", pp. 37-38, rec.). And it is an accepted rule that a person who has a torrens title over the property, like herein private respondents, is entitled to the possession thereof.

III

Under Section 8 of Rule 70 of the Revised Rules of Court, if the judgment is against the defendant, "execution shall issue immediately, unless an appeal has been perfected and the defendant to stay execution files a sufficient bond, ... to pay the rents, damages and costs accruing down to the time of the judgment appealed from, and unless, during the pendency of the appeal, he deposits with the appellate court the amount of rent due from time to time ... ." 10 The requirement of a supersedeas bond is mandatory and cannot be dispensed with by the courts, 11 except when the delay or failure to file the same is due to fraud, accident or mistake or excusable negligence. 12 Herein petitioners did not allege such exception, much less prove the same.

The herein petitioners neither filed the supersedeas bond nor deposited the reasonable monthly rental decreed in the judgment of the Angeles City Court, which failure justifies the immediate execution of the judgment. 13

The duty of the court under such a situation becomes mandatory and ministerial 14 as well as imperative. 15

WHEREFORE, petition is hereby dismissed and the preliminary injunction heretofore issued is hereby lifted and set aside, with costs against herein petitioners. So ordered.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo and Villamor, JJ., concur.

G.R. No. L-20617             May 31, 1965

BRUNO GARCIA, petitioner, vs.

DALMACIO ANAS, ET AL., respondents.

Bienvenido L. Garcia for petitioner.

Apolonio Barrera for respondent Dalmacio Anas.

BAUTISTA ANGELO, J.:

Dalmacio Anas filed on August 3, 1957 before the Justice of the Peace Court of Zablan Mt. Province a complaint for forcible entry against Bruno Garcia praying that the latter be ordered to deliver to the former the possession of the land in litigation. Defendant, in his answer, averred that the property allegedly owned by the plaintiff is within the parcel of land handed down to him by his father as his inheritance and that since then he has been in possession thereof and has never been molested nor dispossessed by anyone.

The justice of the peace dismissed the case holding that the defendant is the one entitled to the possession of the land. On appeal, the Court of First Instance of Baguio reached practically the same conclusion. It dismissed the complaint on the ground that plaintiff has failed to identify the land which he claims to have been dispossessed by defendant.1äwphï1.ñët

The case went to the Court of Appeals but this time this Court found that the complaint is meritorious. It ordered defendant to restore to plaintiff the possession of the land and to pay him P500.00 as attorney's fees. The case is now before us on a petition for review.

The court a quo, after an examination of the evidence, concluded that plaintiff has not been able to identify the land which he claims to have been dispossessed by defendant for, according to the court, even his own witness Rosita Gayo gave as a description of the land sold by her father one consisting of 10 hectares instead of only 4 which is the one allegedly sold by her father to the plaintiff, while, on the other hand, the preponderance of evidence shows that defendant is the owner of the land and the one entitled to its possession. Consequently, on the basis of this finding, the court dismissed the complaint.

The Court of Appeals, however, reached a different conclusion. Thus, it found that the plaintiff is the rightful, sole and absolute owner since time immemorial of the parcel of land described in the complaint; that plaintiff bought 4 of the 10 hectares of the land from one Pablo Galbo in 1945 which he occupied and expanded by including the 6 hectares he acquired

through a patent application; and that in May, 1957, defendant entered the land, had the same surveyed over his protest, fenced it and turned loose his carabaos thereon. And considering that defendant did not deny these facts but limited himself to proving his title to the land by identifying the tax declarations covering the same, the Court of Appeals reached the conclusion that plaintiff was in actual possession of the land of which he was dispossessed by defendant by having it surveyed and possessed.

We agree with the Court of Appeals that in an action for ejectment the only issue involved is one of the possession de facto the purpose of which is merely to protect the owner from any physical encroachment from without. The title of the land or its ownership is not involved, for if a person is in actual possession thereof he is entitled to be maintained and respected in it even against the owner himself. The main thing to be proven is prior possession and if same is lost through force, stealth or violence, it behooves the court to restore it regardless of its title or ownership. (2 Moran, Comments on the Rules of Court 289 [1957 ed.]. In this sense, we find incorrect the procedure adopted by the court a quo wherein, to determine the right to possession, it resorted to an analysis of the evidence regarding its title or ownership, and when it found that the plaintiff failed to establish his ownership it dismissed his complaint. Such finding is not necessary. What is important is to find out who the actual possessor is and if his possession has been disturbed. This the Court of Appeals did, which finding we cannot now look into.

WHEREFORE, the decision appealed from is affirmed. Costs against petitioner.

Bengzon, C.J., Reyes, J.B.L.. Barrera, Paredes, Regala, Makalintal, Bengzon, J.P., and Zaldivar, JJ., concur.Concepcion and Dizon, JJ., took no part.

G.R. No. L-20330; December 22, 1966

ADOLFO RACAZA, petitioner, vs.

SUSANA REALTY, INC., respondent.

Fortunato M. Ejercito for petitioner.

Bausa, Ampil and Associates and Alfredo G. Palacol for respondent.

REGALA, J.:

Petitioner is the lessee of a portion of a piece of land located at San Juan St., Pasay City, and owned by respondent corporation. He started renting this portion of the lot in 1952 when his wife, Evarista P. Racaza, bought an unfinished house that had been built on it. On assurance of respondent that petitioner's family could stay on the land by paying a monthly rent of P15, petitioner finished the construction of the house and he and his family

lived in it. On December 16, 1955, however, petitioner was asked to vacate the land because respondent needed it. The demand was followed by the filing on February 10, 1956 of a complaint for ejectment in the Municipal Court of Pasay City. Petitioner and his family remained in the premises as the case was dismissed for failure of respondent to proceed to trial.

On December 17, 1957, petitioner received another letter from respondent demanding anew the surrender of the premises. On February 19, 1958, another ejectment suit was filed against him, the complaint alleging that respondent needed the lot "for the purpose of constructing improvements thereon and for other uses but that despite repeated demands petitioner refused to leave the premises.

In his answer, petitioner denied that the lease was on a month-to-month basis and claimed that his understanding with respondent was that he would be allowed to stay on the premises as long as he paid a monthly rent of P15. As counterclaim, petitioner demanded the payment of P12,000 which he said he had spent to finish the construction of his house.

After trial, the court ordered petitioner to vacate the premises and pay P15 a month until he had done so, even as it dismissed his counterclaim for lack of merit.

Petitioner appealed to the Court of First Instance of Pasay, reiterating his counterclaim. He asked for the dismissal of the complaint on the ground of lack of jurisdiction of the municipal court to try it, claiming that the complaint was filed more than one year after the alleged unlawful detainer.1 According to petitioner, the first complaint for ejectment was dismissed on November 23, 1956, while the complaint in this case was not filed until February 19, 1958.

Again, petitioner was ordered evicted; his counterclaim was thrown out for lack of jurisdiction. It was held that petitioner's illegal possession should be deemed to have started on December 17, 1957, when the second demand to vacate was made on him, because the complaint in this case was not intended to revive the one previously dismissed for lack of prosecution. Since the complaint was filed on February 19, 1958, jurisdiction over the case was properly acquired by the municipal court. At the same time, it was held that the counterclaim was correctly dismissed as the amount of the demand (P12,000) was beyond the jurisdiction of the municipal court to grant.

Petitioner asked for a reconsideration and, failing to secure one, appealed to the Court of Appeals. First, he contended that the municipal court did not have jurisdiction because by respondent's own evidence rents had not been paid since July, 1955 and it should be from this date that the one-year period should be counted. Second, petitioner claimed that, instead of dismissing his counterclaim, the lower court should have assumed original jurisdiction over it, considering that evidence to support the counterclaim had been allowed without objection from the respondent.

After stating that in actions for unlawful detainer, notice to vacate need not be alleged but may merely be shown by evidence, the appellate court ruled that the one year period should not be counted from July, 1955

because the parties had stipulated that petitioner was up to date in the payment of rents. Neither should it be reckoned from November 23, 19562

when the first demand to vacate was made because it was respondent's privilege, as lessor, to waive the right to bring an action based on the first demand. (Zobel v. Abreu, 98 Phil. 343 [1956]) Rather, the starting point should be December 17, 1958 when the second demand to quit was made by respondent because, as held in Cruz vs. Atencio, G.R. No. L-11276, February 28, 1959,

Where despite the lessee's failure to pay rent after the first demand, the lessor did not choose to bring an action in court but suffered the lessee to continue occupying the land for nearly two years, after which the lessor made a second demand, the one-year period for bringing the detainer case in the justice of the peace court should be counted not from the day the lessee refused the first demand for payment of rent but from the time the second demand for rents and surrender of possession was not complied with.

On this score, the court overruled petitioner's first assignment of error.

But the court found merit in petitioner's other contention that evidence having been admitted without objection from respondent, the Court of First Instance, pursuant to Rule 40, section 11, could take cognizance of the counterclaim in the exercise of its original jurisdiction. Citing article 1678 of the Civil Code, the court held that petitioner should be reimbursed one-half of what he had spent in building his house. While petitioner claimed that he had spent P12,000 for the improvement of his house, the appellate court found that the fair market value of the house was P7,000 and, on the basis of this amount, awarded P3,500 to petitioner.

Still not satisfied, petitioner asked the appellate court to reconsider its decision. When his motion was denied, he appealed to this Court.

It is contended that respondent's complaint is defective and did not vest jurisdiction in the municipal court because it does not state the date when the alleged unlawful detainer started so as to afford a basis for determining whether the case was filed within a year from the accrual of the cause of action. In this connection, it is claimed that, according to the evidence, petitioner stopped paying rents in July, 1955 and that it should be from this date that the one-year period should be counted.

To begin with, this case was brought not on the theory that petitioner, as lessee, failed to pay rents, but on the theory that the lease had expired and that respondent had asked petitioner to vacate the land. Thus, the complaint states that respondent needs the land but that despite his demands petitioner refused to vacate it. The averment that the lease was on a month-to-month basis is equivalent to an allegation that the lease expired at the end of every month.3 It is therefore immaterial that rents had not been paid since July, 1955, since what made petitioner liable for ejectment was the expiration of the lease. This being the case, demand to vacate was unnecessary. As this Court explained in Co Tiamco v. Diaz, 78 Phil. 672 (1946), Rule 70, section 2 requires previous demand only when the action is "for failure to pay rent due or to comply with the conditions of

his lease." Where the action is to terminate the lease because of the expiration of its term, no such demand is necessary.4 In the latter case, upon the expiration of the term of the lease, the landlord may go into the property and occupy it, and if the lessee refuses to vacate the premises, an action for unlawful detainer may immediately be brought against him even before the expiration of the fifteen or five days provided in Rule 70, section 2.

Accordingly, upon the expiration of the lease in this case, petitioner became a deforciant unlawfully withholding possession of the property. There was no need for a demand to be served on him, except to negate any inference that respondent, as lessor, had agreed to an extension of the term of the lease under article 1687 of the Civil Code.

This brings us to petitioner's next point. As earlier stated, petitioner was twice asked to quit the premises. The first was on December 16, 1955, but as pointed out in the beginning, the complaint filed afterwards was dismissed for non-suit. The second time he was asked to move out was on December 19, 1958. Petitioner insists that respondent's cause of action must be deemed to have accrued on December 16, 1955. But, as already stated, respondent's action is not based on non-profit of rent coupled with a demand; its action is based on the expiration of the term of the lease and the demand made by it to vacate the premises merely evidences its determination not to extend the lease. Moreover, even if the action were based on non-payment of rent, the one-year period should be reckoned from the second notice, on the theory that respondent has the right to waive his action based on the first demand and to let the lessee remain in the premises.

Nor is there merit in petitioner's last point that he should have been allowed full reimbursement for what he had spent by applying to this case article 448 of the Civil Code. It is now settled that article 448, in relation to article 546, applies only to possessors in good faith and since lessees, like petitioner, are not possessors in good faith, because they know that their occupation of the premises continues only during the life of the lease, they cannot recover the value of their improvements from the lessor, much less retain the premises until they are reimbursed. Their rights are governed by article 1678 which allows reimbursement of lessees up to one-half of the value of their useful improvements. (Lopez, Inc. vs. Philippine & Eastern Trading Co., 98 Phil. 348 [1956]) The Court of Appeals correctly applied article 1678 to this case.

WHEREFORE, the decision appealed from is affirmed, with costs against petitioner.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ., concur.