Under the law and the Rules of Court, an owner is given an assortment of legal remedies to recover possession of real property from the illegal occupant. The choice of which action to pursue rests on the owner. Should he/she elect to file a summary action for unlawful detainer, he/she must prove all the essential jurisdictional facts for such action to prosper. The most important of which, is the fact that the respondent's entry into the land was lawful and based on the former's permission or tolerance. Absent this essential jurisdictional fact, the action for unlawful detainer must be dismissed.

This treats of the Petition for Review on Certiorari^[2] under Rule 45 of the Revised Rules of Court seeking the reversal of the Decision^[3] dated March 30, 2012, and Resolution^[4] dated October 30, 2012, rendered by the Court of Appeals (CA) in CA-G.R. CEB-SP No. 03115, which dismissed the case for unlawful detainer filed by Cecilia T. Javelosa (petitioner).

The Antecedents

The petitioner is the registered owner of a parcel of land located at Sitio Pinaungon, Barangay Balabag, Boracay Island, Malay, Aklan (subject property). The subject property contains an area of 10,198 square meters, more or less, and is covered by Transfer Certificate of Title (TCT) No. T-35394.^[5] The subject property was originally covered by Original Certificate of Title (OCT) No. 2222, which the petitioner acquired by donation from her predecessor-in-interest Ciriaco Tirol (Tirol).^[6]

The subject property was occupied by Ezequiel Tapus (Ezequiel), Mario Madriaga (Mario), DannyM. Tapuz (Danny), Juanita Tapus (Juanita) and Aurora Madriaga (Aurora) (collectively referred to as the respondents). Allegedly, the respondents' predecessor was assigned as a caretaker of the subject property, and therefore possessed and occupied a portion thereof upon the tolerance and permission of Tirol.^[7]

Sometime in 2003, the petitioner's daughter, Diane J. Jimenez (Jimenez), learned that Expedito Tapus, Jr., a relative of the respondents offered the subject property for sale.^[8] Alarmed, Jimenez sought the assistance of the Office of Barangay Balabag, Boracay Island, Malay, Aklan. Thereafter, the case was referred to the Office of the Lupong Tagapamayapa for a possible alternative resolution of the conflict. However, the parties failed to reach an amicable settlement.^[9]

In October 2003, the petitioner sent a demand letter to the respondents ordering them to vacate the subject property. The demand was unheeded.^[10] This prompted the petitioner to file a case for unlawful detainer.

Juanita filed her Answer^[11] claiming that she and her predecessors-in-interest have been occupying the subject property since time immemorial. She emphasized that they are actual, adverse and exclusive possessors under a claim of ownership. She further averred that they are indigenous occupants and tribal settlers of the land in dispute, and hence their rights are protected by law. In contrast, the petitioner and Jimenez have never even set foot on the property.

The other respondents, Ezequiel, Mario, Danny and Aurora, filed a separate Answer with Counterclaim and Motion to Dismiss^[12] dated March 18, 2004. They claimed that they inherited the subject property from their late grandfather Antonio Tapus. Consequently, they are the lawful and actual possessors of the subject property. In fact, they have been occupying the said property for 60 years. They likewise claimed that the petitioner and her predecessors are land grabbers, whose title over the property was fake and spurious.^[13]

Ruling of the Municipal Circuit Trial Court

In its Decision^[14] on November 18, 2005, the Municipal Circuit Trial Court (MCTC) awarded the subject property in favor of the petitioner, and consequently, ordered the respondents to vacate, and pay the petitioner a monthly rental of Php 500.00. To properly determine the issue of possession, the MCTC first provisionally delved into the issue of ownership. In this regard, the MCTC held that the petitioner, being the registered owner of the subject property is entitled to its possession.^[15]

Likewise, the MCTC gave credence to the petitioner's contention that the respondents' stay in the subject property was merely upon the permission granted by her predecessor to the respondents. Accordingly, the respondents' possession became illegal from the moment the petitioner ordered them to vacate. ^[16]

Moreover, the MCTC noted that the respondents did not submit any proof to establish their purported claim of ownership. Neither were they able to prove their allegation that the source of the petitioner's title was spurious. At any rate, the MCTC held that such a defense constituted a collateral attack on the petitioner's title, which shall not be permitted in an action for unlawful detainer. Consequently, the MCTC regarded the petitioner's title as valid, unless declared null and void by a court of competent jurisdiction.^[17]

The dispositive portion of the MCTC decision reads:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

1. Declaring that the [petitioner] has a better right to physical possession of the land in question;

2. Ordering the [respondents] and all other persons claiming rights under them to immediately vacate the land in question designated as Lot 30-G-5 in the Commissioner's Sketch and to turn over the possession thereof to the [petitioner]

3. Ordering the [respondents] to pay the [petitioner] monthly rental of Php 500.00, reckoned from the filing of the complaint on February 27, 2004, until the [petitioner] shall have been completely restored in actual possession thereof; and

4. Ordering the [respondents] to pay the [petitioner] the sum of Php 10,000.00 as attorney's fees.

SO ORDERED.^[18]

Aggrieved, the respondents filed an appeal against the MCTC decision.

Ruling of the Regional Trial Court

On August 8, 2007, the Regional Trial Court (RTC) rendered a Decision^[19] affirming the ruling of the MCTC.

First, the RTC affirmed the jurisdiction of the MCTC over the case. It observed that the allegations of the complaint sufficiently made out a case for unlawful detainer. As to the merits of the case, the RTC agreed with the MCTC's conclusion that the petitioner, being the owner of the subject property is entitled to possess the same. It noted that the respondents merely occupied the subject property upon the tolerance of the petitioner. Consequently, they must vacate as soon as the said permission was withdrawn.^[20]

The dispositive portion of the RTC decision reads:

WHEREFORE, premises considered and finding no reversible error, the decision appealed from is hereby affirmed in toto.

SO ORDERED.^[21]

Dissatisfied with the ruling, the respondents filed an appeal before the CA.

Ruling of the CA

On March 30, 2012, the CA rendered the assailed Decision,^[22] reversing the disquisitions of the MCTC and the RTC.

The CA ratiocinated that although the MCTC had jurisdiction over the unlawful detainer case, the trial court however erred in upholding the petitioner's right to possess the subject property. The CA pointed out that the petitioner failed to prove the fact that the respondents indeed occupied the subject property through her permission and tolerance. It stressed that to make out a case for unlawful detainer, the petitioner must concomitantly prove that the respondents' prior lawful possession has become unlawful due to the expiration of the right to possess the property. The petitioner failed to show that the respondents occupied the subject property pursuant to her tolerance, and that such permission was present from the very start of their occupation. Absent the fact of tolerance, the remedy of unlawful detainer would be inappropriate.^[23]

The decretal portion of the assailed CA decision reads:

WHEREFORE, premises considered, the petition is hereby GRANTED and the Decision, dated August 8, 2007, of the RTC Kalibo, Aklan, Branch 2 relative to Civil Case No. 7652 for Unlawful Detainer is NULLIFIED and SET ASIDE. A new one is entered in its stead declaring respondent's case as DISMISSED.

SO ORDERED.^[24]

Aggrieved by the ruling of the CA, the petitioner filed a Motion for Reconsideration, which was denied by the CA in its Resolution^[25] dated October 30, 2012.

Undeterred, the petitioner filed the instant Petition for Review on Certiorari^[26] before the Court.

The Issues

The main issue raised for the Court's resolution is whether or not the CA erred in dismissing the case for unlawful detainer.

In praying for the reversal of the assailed CA decision, the petitioner claims that she had proven her ownership of the subject property, and consequently, her right to possess the same.^[27] She points out that she submitted a verified consolidated position paper, which supported the allegations in her complaint, as well as copies of TCT No. T-35394 and OCT No. 2222, which established her ownership over the subject property.^[28] The petitioner bewails that in contrast to the evidence she submitted, the respondents failed to present affidavits of their witnesses or any evidence- documentary or otherwise, that would prove their right to possess the subject property.^[29] Aside from the photocopy of a Sketch Plan, the respondents did not have any evidence to support their claim of purported ownership of over 60 years.^[30] Also, the respondents' prior physical possession does not automatically entitle them to the subject property, especially as against her- the lawful owner of the same.^[31]

Likewise, the petitioner avers that her failure to reside in the property should not be taken against her. The subject property was an agricultural land, which was not meant for residential purposes. In fact, it was precisely for this purpose that the respondents' predecessors-in-interest were employed as caretakers of the land.^[32] Finally, the petitioner asserts that her tolerance of the respondents' occupation was obvious from the fact that she allowed them to stay in the subject property for several years, without ordering them to vacate the premises, or filing an action to eject them. This allegedly proves her acquiescence to the respondents' occupation.^[33]

On the other hand, the respondents pray for the outright dismissal of the instant petition due to the petitioners' failure to raise a question of law, and show that the CA committed a reversible error.^[34] Particularly, the CA correctly ruled that the petitioner failed to prove her supposed tolerance of the respondents' stay in the subject property.^[35] In fact, the respondents point out that the purported tolerance by the petitioner of their occupation for over 71 years is contrary to human experience.^[36] The respondents further aver that tolerance can only exist insofar as there is a recognition of the right asserted by the tolerating party.^[37] Their predecessor-in-interest never recognized the ownership of the petitioner or any of her predecessors-in-interest.^[38]

Similarly, the respondents counter that the petitioner could not acquire a better right to possess, as she has in fact never been in actual physical possession of the subject property, while they have been occupying the same property since time immemorial.^[39] The petitioner anchors her claim from the right of her predecessor-in-interest Tirol, who himself never occupied the subject property.^[40]

Finally, the respondents claim that the MCTC should have dismissed the action for unlawful detainer considering that the principal issue determined before the MCTC was the ownership of the property. As such, jurisdiction should have been with the RTC considering that the assessed value of the subject property exceeded Php 20,000.00.^[41]

Ruling of the Court

The instant petition is bereft of merit.

It must be noted at the outset that the jurisdiction of the Court in a petition for review on certiorari under Rule 45 of the Revised Rules of Court is limited only to reviewing errors of law, not of fact.^[42] A question of law arises when there is doubt as to what the law is on a certain set of facts, while there is a question of fact when the doubt arises as to the truth or falsity of the alleged facts. For a question to be one of law, the same must not involve an examination of the probative value of the evidence presented by the litigants or any of them. The resolution of the issue must rest solely on what the law provides on the given set of circumstances. Once it is clear that the issue invites a review of the evidence presented, the question posed is one of fact.^[43] Essentially, the issue as to who between the parties has a better right of possession will necessarily entail a review of the evidence presented, which is beyond the province of a petition for review on certiorari under Rule 45.

At any rate, the CA did not commit any error that would warrant a reversal of its assailed decision.

The owner of real property cannot wrest possession from the occupant, through the simple expedient of filing an action for unlawful detainer without sufficiently proving the essential requisites for such action to prosper.

It is an elementary principle of civil law that the owner of real property is entitled to the possession thereof as an attribute of his or her ownership. In fact, the holder of a Torrens Title is the rightful owner of the property thereby covered, and is entitled to its possession.^[44] This notwithstanding, "the owner cannot simply wrest possession thereof from whoever is in actual occupation of the property."^[45] Rather, to recover possession, the owner must first resort to the proper judicial remedy, and thereafter, satisfy all the conditions necessary for such action to prosper.^[46]

Accordingly, the owner may choose among three kinds of actions to recover possession of real property - an accion interdictal, accion publiciana or an accion reivindicatoria.

Notably, an accion interdictal is summary in nature, and is cognizable by the proper municipal trial court or metropolitan trial court. It comprises two distinct causes of action, namely, forcible entry (detentacion) and unlawful detainer (desahuico). In forcible entry, one is deprived of the physical possession of real property by means of force, intimidation, strategy, threats, or stealth, whereas in unlawful detainer, one illegally withholds possession after the expiration or termination of his right to hold possession under any contract, express or implied. An action for forcible entry is distinguished from an unlawful detainer case, such that in the former, the possession of the defendant is illegal from the very beginning, whereas in the latter action, the possession of the defendant is originally legal but became illegal due to the expiration or termination of the right to possess. Both actions must be brought within one year from the date of actual entry on the land, in case of forcible entry, and from the date of last demand, in case of unlawful detainer. The only issue in said cases is the right to physical possession.^[47]

On the other hand, an accion publiciana is the plenary action to recover the right of possession, which should be brought in the proper regional trial court when dispossession has lasted for more than one year. It is an ordinary civil proceeding to determine the better right of possession of realty independently of title.^[48]

Lastly, an accion reivindicatoria is an action to recover ownership, also brought in the proper RTC in an ordinary civil proceeding.^[49]

In the case at bar, the petitioner, claiming to be the owner of the subject property, elected to file an action for unlawful detainer. In making this choice, she bore the correlative burden to sufficiently allege, and thereafter prove by a preponderance of evidence all the jurisdictional facts in the said type of action. Specifically, the petitioner was charged with proving the following jurisdictional facts, to wit:

(i) initially, possession of property by the defendant was by contract with or by tolerance of the plaintiff;

(ii) eventually, such possession became illegal upon notice by plaintiff to defendant of the termination of the latter's right of possession;

(iii) thereafter, the defendant remained in possession of the property and deprived the plaintiff of the enjoyment thereof; and

(iv) within one year from the last demand on defendant to vacate the property, the plaintiff instituted the complaint for ejectment.^[50]

Particularly, the complaint stated that (i) the respondents occupied the subject property upon the tolerance of the petitioner; (ii) the petitioner sent the respondents a demand to vacate sometime in October 2003; (iii) the same demand was unheeded; and (iv) the action for unlawful detainer was filed within one year from the date of the demand.^[51] Verily, the following jurisdictional facts properly vested the MCTC of Buruanga, Aklan, with jurisdiction over the case.

However, in order for the petitioner to successfully prosecute her case for unlawful detainer, it is imperative upon her to prove all the assertions in her complaint. After all, "the basic rule is that mere allegation is not evidence and is not equivalent to proof."^[52] This, the petitioner failed to do. As correctly observed by the CA, the petitioner failed to adduce evidence to establish that the respondents' occupation of the subject property was actually effected through her tolerance or permission. Unfortunately, the petitioner failed to prove how and when the respondents entered the subject lot, as well as how and when the permission to occupy was purportedly given. In fact, she was conspicuously silent about the details on how the permission to enter was given, save for her bare assertion that the respondents' occupied the premises as caretakers thereof. The absence of such essential details is especially troubling considering that the respondents have been occupying the subject property for more than 70 years, a fact which was not disputed by the petitioner. In this regard, it is must be shown that the respondents first came into the property due to the permission given by the petitioner or her predecessors.

It cannot be gainsaid that the fact of tolerance is of utmost importance in an action for unlawful detainer. Without proof that the possession was legal at the outset, the logical conclusion would be that the defendant's possession of the subject property will be deemed illegal from the very beginning, for which, the action for unlawful detainer shall be dismissed.^[53]

Remarkably, in Quijano v. Atty. Amante,^[54] the Court ruled that in an action for unlawful detainer, the plaintiff must show that the possession was initially lawful, and thereafter, establish the basis of such lawful possession. Similarly, should the plaintiff claim that the respondent's possession was by his/her tolerance, then such acts of tolerance must be proved. A bare allegation of tolerance will not suffice. At least, the plaintiff must point to the overt acts indicative of his/her or predecessor's permission to occupy the disputed property. Failing in this regard, the occupant's possession could then be deemed to have been illegal from the beginning. Consequently, the action for unlawful detainer will fail. Neither may the ejectment suit be treated as one for forcible entry in the absence of averments that the entry in the property had been effected through force, intimidation, threats, strategy or stealth.^[55]

Similarly, in Suarez v. Sps. Emboy,^[56] the Court warned that "when the complaint fails to aver the facts constitutive of forcible entry or unlawful detainer, as where it does not state how entry was effected or how and when dispossession started, the remedy should either be an accion publiciana or accion reivindicatoria."^[57]

The same ruling was rendered in the case of Dr. Carbonilla v. Abiera, et al.,^[58] where the Court laid the important dictum that the supposed acts of tolerance should have been present right from the very start of the possession—from entry to the property. "Otherwise, if the possession was unlawful from the start, an action for unlawful detainer would be an improper remedy."^[59] This same ruling was echoed in Jose v. Alfuerto, et al.,^[60] where the Court even emphasized its consistent and strict holding that in an unlawful detainer case, "tolerance or permission must have been present at the beginning of possession; if the possession was unlawful from the start, an action for unlawful detainer would not be the proper remedy and should be dismissed."^[61]

Perforce, guided by all the foregoing cases, an action for unlawful detainer fails in the absence of proof of tolerance, coupled with evidence of how the entry of the respondents was effected, or how and when the dispossession started.^[62] This rule is so stringent such that the Court categorically declared in Go, Jr. v. CA^[63] that tolerance cannot be presumed from the owner's failure to eject the occupants from the land.^[64] Rather, "tolerance always carries with it 'permission' and not merely silence or inaction for silence or inaction is negligence, not tolerance."^[65] On this score, the petitioner's tenacious claim that the fact of tolerance may be surmised from her refusal for many years to file an action to evict the respondents is obviously flawed.

Furthermore, it must be stressed that the fact that the petitioner possesses a Torrens Title does not automatically give her unbridled authority to immediately wrest possession. It goes without saying that even the owner of the property cannot wrest possession from its current possessor. This was precisely the Court's ruling in Spouses Munoz v. CA,^[66] viz.:

If the private respondent is indeed the owner of the premises and that possession thereof was deprived from him for more than twelve years, he should present his claim before the Regional Trial Court in an accion publiciana or an accion reivindicatoria and not before the Municipal Trial Court in a summary proceeding of unlawful detainer or forcible entry. For even if he is the owner, possession of the property cannot be wrested from another who had been in possession thereof for more than twelve (12) years through a summary action for ejectment.

Although admittedly petitioner may validly claim ownership based on the muniments of title it presented, such evidence does not responsibly address the issue of prior actual possession raised in a forcible entry case. It must be stated that regardless of actual condition of the title to the property, the party in peaceable quiet possession shall not be turned out by a strong hand, violence or terror. Thus, a party who can prove prior possession can recover such possession even against the owner himself. Whatever may be the character of his prior possession, if he has in his favor priority in time, he has the security that entitles him to remain on the property until he is lawfully ejected by a person having a better right by accion publiciana or accion reivindicatoria.^[67] (Citations omitted and emphasis and underscoring Ours)

As a final note, an important caveat must be laid down. The Court's ruling should not in any way be misconstrued as coddling the occupant of the property, at the expense of the lawful owner. Rather, what this resolution seeks to impress is that even the legal owner of the property cannot conveniently usurp possession against a possessor, through a summary action for ejectment, without proving the essential requisites thereof. Accordingly, should the owner choose to file an action for unlawful detainer, it is imperative for him/her to first and foremost prove that the occupation was based on his/her permission or tolerance. Absent which, the owner would be in a better position by pursuing other more appropriate legal remedies. As eloquently stated by Associate Justice Lucas P. Bersamin in the case of Quijano,^[68] "the issue of possession between the parties will still remain. To finally resolve such issue, they should review their options and decide on their proper recourses. In the meantime, it is wise for the Court to leave the door open to them in that respect. For now, therefore, this recourse of the petitioner has to be dismissed."^[69]

WHEREFORE, premises considered, the Petition is DENIED for lack of merit. Accordingly, the Decision dated March 30, 2012, and Resolution dated October 30, 2012, rendered by the Court of Appeals in CA-G.R. CEB-SP No. 03115, are hereby AFFIRMED.

SO ORDERED.

Carpio (Chairperson),^[*] Peralta, Perlas-Bernabe, and Caguioa, JJ., concur.

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July 30, 2018

NOTICE OF JUDGMENT

Sir/Madam:

Please take notice that on July 4, 2018 a Decision, copy attached herewith, was rendered by the Supreme Court in the above-entitled case, the original of which was received by this Office on July 30, 2018 at 1:52 p.m.

Very truly yours,   MA. LOURDES C. PERFECTO Division Clerk of Court By: (SGD.) TERESITA AQUINO TUAZON Deputy Division Clerk of Court

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^[*] Senior Associate Justice (Per Section 12, Republic Act No. 296, The Judiciary Act of 1948, As Amended)

^[1] Name was spelled as "Tapuz" in the rollo cover.

^[2] Rollo, pp. 3-32.

^[3] Penned by Associate Justice Pampio A. Abarintos, with Associate Justices Ramon Paul L. Hernando and Victoria Isabel A. Paredes, concurring; id. at 33-43.

^[4] Id. at 45-46.

^[5] Id. at 9.

^[6] Id. at 50.

^[7] Id. at 9.

^[8] Id.

^[9] Id. at 10.

^[10] Id.

^[11] Id. at 83-103.

^[12] Id. at 104-108.

^[13] Id. at 106.

^[14] Rendered by Presiding Judge Raul C. Barrios; id. at 52-62.

^[15] Id. at 58.

^[16] Id. at 59.

^[17] Id. at 58.

^[18] Id. at 61-62.

^[19] Rendered by Presiding Judge Ledelia P. Aragona-Biliran; id. at 48-51.

^[20] Id. at 49-50.

^[21] Id. at 51.

^[22] Id. at 33-42.

^[23] Id. at 39-41.

^[24] Id. at 42.

^[25] Id. at 45-46.

^[26] Id. at 3-32.

^[27] Id. at 23.

^[28] Id. at 16-17.

^[29] Id. at 17.

^[30] Id. at 19.

^[31] Id. at 22.

^[32] Id. at 21.

^[33] Id. at 27-28.

^[34] Id. at 169-170.

^[35] Id. at 170.

^[36] Id.

^[37] Id. at 197.

^[38] Id.

^[39] Id. at 176.

^[40] Id. at 198.

^[41] Id. at 196.

^[42] Tenazas, et al. v. R. Villegas Taxi Transport, et al., 731 Phil. 217, 228 (2014), citing "J" Marketing Corporation v. Taran, 607 Phil. 414, 424-425 (2009).

^[43] Tongonan Holdings and Dev't. Corp. v. Atty. Escaño, Jr., 672 Phil. 747, 756 (2011), citing Rep. of the Phils. v. Malabanan, et al., 646 Phil. 631, 637-638 (2010).

^[44] Quijano v. Atty. Amante, 745 Phil. 40, 51-52 (2014), citing Sps. Beltran v. Nieves, 648 Phil. 460, 466 (2010); Manila Electric Co. v. Heirs of Sps. Deloy, 710 Phil. 427, 443 (2013); Sps. Pascual v. Sps. Coronel, 554 Phil. 351, 356 (2007).

^[45] Suarez v. Sps. Emboy, 729 Phil. 315, 329 (2014).

^[46] Id.

^[47] Id.

^[48] Id. at 329-330.

^[49] Id.

^[50] Id. at 330.

^[51] Rollo, pp. 112-113.

^[52] ECE Realty and Development Inc. v. Mandap, 742 Phil. 164, 171 (2014).

^[53] Quijano v. Atty. Amante, supra note 44, at 42.

^[54] 745 Phil. 40 (2014).

^[55] Id. at 42.

^[56] 729 Phil. 315 (2014).

^[57] Id. at 325.

^[58] 639 Phil. 473 (2010).

^[59] Id. at 482.

^[60] 699 Phil. 307 (2012).

^[61] Id. at 319.

^[62] Dr. Carbonilla v. Abiera, et al., supra note 58, at 482.

^[63] 415 Phil. 172 (2001).

^[64] Id. at 181.

^[65] Dr. Carbonilla v. Abiera, et al., supra note 58, at 482.

^[66] 288 Phil. 1001 ( 1992).

^[67] Id. at 1011-1012.

^[68] Supra note 54.

^[69] Id. at 53.