Page 1 of 27

REPUBLIC OF THE PHILIPPINES

SIXTH JUDICIAL REGION
BRANCH 4
KALIBO, AKLAN

RODELINO N. RODRIGUEZ,
Plantiff-Appellant,
Appealed Civil Case No. 11104
Sixth Municipal Circuit Trial Court
Altavas-Balete, Balete, Aklan
Lower Court Case No.: Civil Case
No. 3115
-versus-

FELOMINA PASTOLERO y RODRIGUEZ,

BEBT PASTOLERO, GIL OBRIQUE, MYLENE
OBRIQUE and ENGR. BORGIE RODRIGUEZ,
Defendants-Appellees.
X--------------------------------------------X

APPELLEE’S MEMORANDUM
Submitted by:
ATTY. MELANIE OBRIQUE-GUEVARRA
Cos Guevarra and Associates
Counsel for the Defendants-Appellees
Unit 201 Dona Eusebia Rodriguez Bldg.
0611 Quirino Avenue, Paranaque City
IBP No. 070285;01-21-19;Pasig City
PTR No. 1741150;01-17-19; Parañaque City
Roll No.56511

Copy Furnished:

ATTY. MARION R. MERCED – PESCASIOSA, CPA

Counsel for the Plaintiff-Appelant
Ground Floor, Aklan Catholic College Bldg.
Archbishop Reyes St., Kalibo, Aklan

HON. PRESIDING JUDGE

SIXTH MUNICIPAL CIRCUIT TRIAL COURT
OF ALTAVAS AND BALETE
SIXTH JUDICIAL REGION
ALTAVAS, AKLAN

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SUBJECT INDEX

Page No. Contents

1 Cover Page
2-3 Subject Index
4 Prefatory Statement
4-5 Statement of the Case
5-7 Statement of Facts
7 Counter Arguments
7-27 Discussion
27 Prayer and Explanation
28 Verification

Cases Cited (Order of Appearance)

 In Nuesa v. Court of Appeals G.R. No. 132048, 06 March 2002, 378 SCRA
351, 361-362.

 PHILIPPINE VETERANS BANK vs. HON. COURT OF APPEALS,

LAZARO CRUZ, FRANCISCO T. CRUZ, Provincial Agrarian Reform
Officer ERLINDA PEARL V. ARMADA, DAR Provincial Adjudicator HON.
GREGORIO D. SAPERA and THE REGISTER OF DEEDS OF THE
PROVINCE OF BULACAN, G.R. No. 132561, June 30, 2005.

 Nenita Quality Foods Corporation vs.Crisostomo Galabo, et al., G.R. No.

174191, January 30, 2013

 EVANGELINE RIVERA-CALINGASAN and E. RICAL ENTERPRISES,

Petitioners, vs.WILFREDO RIVERA, substituted by MA. LYDIA S.
RlVERA, FREIDA LEAH S. RIVERA and WILFREDO S. RIVERA,.JR.,
Respondents, G.R. No.171555, April 17, 2013

 De Grano v. Lacaba,G.R. No. 158877, June 16, 2009, 589 SCRA 148

 Calingasan vs. Rivera, Jr., G.R. No.171555, April 17, 2013

 Abad v. Farrales, G.R. No. 178635, 11, April 2011

 Sarmiento vs. CA, 320 Phil. 146 (1995)

 Ong v. Court of Appeals, 407 Phil 1045 (2001).

Law and Annotations Cited

Section1, Rule 70 of the Rules on Summary Procedure

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REPUBLIC OF THE PHILIPPINES

SIXTH JUDICIAL REGION
BRANCH 4
KALIBO, AKLAN

RODELINO N. RODRIGUEZ,
Plantiff-Appellant,
Appealed Civil Case No. 11104
Sixth Municipal Circuit Trial Court
Altavas-Balete, Balete, Aklan
Lower Court Case No.:Civil Case
No. 3115
-versus-

FELOMINA PASTOLERO y RODRIGUEZ,

BEBT PASTOLERO, GIL OBRIQUE, MYLENE
OBRIQUE and ENGR. BORGIE RODRIGUEZ,
Defendants-Appellees.
X--------------------------------------------X

APPELLEE’S MEMORANDUM
Defendants-Appellees, in answer to the allegations raised by the
Defendants-Appellees in its Brief, respectfully states:

PREFATORY STATEMENT

1. Through this appeal, plaintiff-appellant assails the

a) Decision dated 10 April 2018 of the Regional Trial Court (RTC for
brevity) of Pasay City, Branch 109 in Civil case No. R-PSY-17-26770-
CV declaring the marriage between appelle Jordan Inanod and
respondent Ma. Odette Conde-Inanod void on the ground of the alleged
psychological incapacity of both parties under Article 36 of the Family
Code,

STATEMENT OF THE CASE

2. This appealed case stemmed from a Forcible Entry with Prayer for
Temporary Restraining Order/Preliminary Injunction case filed by
Plaintiff-Appellant, RODELINO N. RODRIGUEZ, on April 19, 2018,
which sought to recover the material possession of a parcel of land and
the award of damages, against defendants-appelles FELOMINA
PASTOLERO y RODRIGUEZ, BEBOT PASTOLERO, GIL OBRIQUE,
MYLENE OBRIQUE and ENGR. BORGIE RODRIGUEZ with the
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Municipal Circuit Trial Court (MTC) of Altavas, Aklan therein docketed

as Civil Case No. 311-B for FORCIBLE ENTRY with Prayer for
Temporary Restraining Order/Preliminary Injunction.

3. On May 20, 2018 defendants filed their Answer dated May 20, 2018
and on May 30, 2019, defendants-appelles filed their Amended Answer
dated May 25, 2018.

4. On November 27, 2018, a Preliminary Conference Order was issued by

the lower court with the following issues to be resolved as agreed by
the parties, to wit:

1) Who, between the plaintiff and the defendants, was/ were in atual
and physical possession of Lot No. 1442- D prior to June 20, 2017?
2) Was the plaintiff unlawfully deprived of the possession of the land
in question by the defendants?
3) Who, between the plaintiff and the defendants, are entitled to
damages?

5. Position Papers were then simultaneously filed by the plaintiff-appellant

and defendants-appelles.

6. On February 28, 2019, a Decision was rendered by the Municipal

Circuit Trial Court dismissing the Complaint dated April 16, 2017. The
dispositive portion is hereby quoted as follows:

“WHEREFORE, all the foregoing considered, the Complaint

dated April 16, 2017 is hereby DISMISSED, the plaintiff having failed
to substantiate his material allegations therein.

The defendants’ claim for damages is denied for lack of

evidence.

SO ORDERED.

Altavas, Aklan, Philippines

February 28, 2019”

7. Hence, plaintiff-appellant filed the instant appeal.

STATEMENT OF FACTS

8. Defendants-appelles have been in open, continuous, exclusive,

notorious, uninterrupted and adverse possession IN THE CONCEPT
OF AN OWNER AND FOR VALUE as early as 1948 over a portion of
Lot 1442 situated in Barangay Morales, Balete, Aklan. They derived
their right of ownership and possession in 1948 from INOCENTES
JIMERA who ceded, sold, transferred and conveyed the subject
property for value in favor of LOVELL OBRIQUE as evidenced by Tax
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Declaration No. 2779, and the Entry in the said Tax Declaration, which
states that, to quote “Transferred by virtue of Deed of Absolute Sale
executed by Inocentes Jimera in favor of Lovell R. Obrique before
Notary Public Emilio C. Nabor dated October 8, 1964, Doc. No. 88;
Page No. 20; Book No. III; Series of 1964”.

9. In 1973, Lovell Obrique died. Thus, she was substituted by her

husband JOSUE OBRIQUE in the cultivation of the said property. In
1976, Josue Obrique sold the subject property to ROBIN ABELLO as
evidenced by Tax Declaration No. 3956 in the name of Robin Abello,
and its Entry, which states that, to quote: “Transferred per Deed of
Confirmation of Sale executed by Josue S. Obrique before the Notary
Public Cirilo Iligan for Aklan dated Sept. 22, 1976 Doc. No. 1353; Page
no. 56; Book No. 29; Series of 1976.”

10. In 1984, Lot 1442 was mortgaged and eventually transferred from
Robin Abello to (DBP) Development Bank of the Philippines by virtue of
Deed of Sale and Affidavit of Consolidation of Ownership as evidenced
by Tax Declaration No. 3731, and its Entry, which states that, to quote,
“Formerly declared and assessed in the name of Rubin Abello and now
transferred in the name of Development Bank of the Philippines by
virtue of Deed of Sale & and an Affidavit of Consolidation of Ownership
executed before Notary Public, Daniel Martelino for Aklan and entered
in the Notarial registry as Doc. No. 127 & 126; Page No. 27; Book No.
IX; Series of 1984.”

11. That despite the mortgage and consolidation of ownership from

Robin Abello to DBP, defendants-appelles continued its possession and
cultivation of the property and has been in continuous possession and
cultivation of the property without any interruption prior to June 20,
2017 up to present.

12. In a sudden turn of events, plaintiff-appellant now claims ownership

and possession of the portion of Lot 1442, which allegedly to be Lot
1442-D, and anchored the same on being the child of Mr. Marcelino
Rodriguez, who did not acquire nor possess the said land at any time.

13. Plaintiff also claimed in his complaint that hereby defendants-

appelles deprived him of his right to possess the said land by force,
threat or intimidation when no less than (20) twenty armed civilian men
and some policemen from the Balete police station, ordered his said
brother and the (4) four assisting workers to leave, which defendants
denied in their Answer and Amended Answer. However, in the police
blotter (Exhibit “D”), it was shown that he was just asked by policemen
to stop his men who attempted to enter, work and cultivate in Lot 1442,
which he also readily agreed to the asking of the policemen.

14. In their Amended Answer, defendants-appelles likewise denied the

material allegations of the complaint and put up the following defenses,
to wit:
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14.1. That defendants have been in actual, open, continuous,

exclusive, notorious and adverse possession IN THE
CONCEPT OF AN OWNER AND FOR VALUE as early as
1948 over a portion of Lot 1442 situated in Barangay
Morales, Balete, Aklan.

14.2. Plaintiff had no prior physical and actual possession of the

subject lot.

14.3. The allegations of the plaintiff in the complaint do not show

that defendants unlawfully deprived plaintiff of the subject lot
through force, intimidation. Strategy, threat or stealth.

14.4. The plaintiff submitted a false verification and certification.

14.5. The issue of possession should be resolved by the DAR first

considering that the subject Collective CLOA hereto presented
by plaintiff is still pending investigation with the DAR.

14.6. That there are pending complaints filed by both plaintiff and
defendants involving the same essential facts and
circumstances, causes of action, subject matter and issue of
possession with the DAR.

COUNTER-ARGUMENTS

15. Defendants-appellees raise the following counter-arguments to the

assignment of errors raised by the accused-appellant:

I. THE MUNICPAL CIRCUIT TRIAL COURT WAS CORRECT IN

RULING THAT PLAINTIFF-APPELLANT WAS NOT ABLE TO
SUBSTANTIATE BY ADEQUATE EVIDENCE HIS ALLEGATION OF
ACTUAL AND PHYSICAL POSSESSION OF LOT 1442-D PRIOR
TO THE ALLEGED DISPOSITION OF THE DEFENDANT-
APPELLES.

II. THE MUNICPAL CIRCUIT TRIAL COURT WAS CORRECT IN ITS

FINDING THAT DEFENDANTS-APPELLES WERE ABLE TO
PROVE BY PREPONDERANCE OF EVIDENCE THAT THEY ARE
THE ACTUAL AND PHYSICAL POSSESSORS OF THE LAND
SUBJECT OF THIS CASE LONG BEFORE THE ALLEGED
INCIDENT OF JUNE 20, 2017.

DISCUSSION

16. Defendants-appellees oppose the arguments the plaintiff-appellant

has presented in its Appellant’s Brief on the following grounds:

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I. THE MUNICIPAL CIRCUIT TRIAL

COURT WAS CORRECT IN RULING THAT
PLAINTIFF-APPELLANT WAS NOT ABLE TO
SUBSTANTIATE BY ADEQUATE EVIDENCE
HIS ALLEGATION OF ACTUAL AND
PHYSICAL POSSESSION OF LOT 1442-D
PRIOR TO THE ALLEGED DISPOSITION OF
THE DEFENDANT-APPELLES.

17. In the Decision dated February 28, 2019, the Honorable Municipal
Circuit Trial Court was correct in its findings that plaintiff-appellant was not
able to adequately prove that he was in prior actual possession of the land
subject of this case which is the very crux of this suit. Paragraphs 25, 26
and 27, Pages 8 and 9 of the Decision dated February 28, 2019, provide
that, to quote:

“In this case, plaintiff was not able to adequately prove

that he was in prior actual possession of the land subject of this
case which is the very crux of this suit. As earlier stressed,
possession in this instance refers only to actual and physical
possession, not legal possession as contemplated in civil law.
Possession in forcible entry cases refers only to possession de
facto, or actual or material possession, and not possession
flowing out of ownership. The plaintiff testified that his family
was the actual possessor and cultivator of the land in question
even prior to the issuance of the CLOA. However, this
allegation found no adequate support in the testimony of his
other witness on that matter. Witness Rogelio C. Neron, a
resident of sitio Awayon, Barangay Morales, Balete, Aklan,
merely stated in his Judicial Affidavit that plaintiff's family had
been cultivating the riceland in the said barangay for a long
time and he knew this for a fact because when he was still a
teenager, he used to help plaintiff's parents, spouses
Marcelino, Sr. and Marietta Rodriguez, who later gave plaintiff
Rodelino N. Rodriguez the responsibility to take care of the
land.

The testimony of Rogelio C. Neron as contained in his

Judicial Affidavit is too sweeping to believe as his testimony is
apparently bereft of any specific showing how the said
Rodriguez family, and specifically the plaintiff, farmed the land
in controversy. Why did plaintiff not present witnesses farm-
workers and adjoining lot owners who could have well and
competently support his claimed actual cultivation of the subject
property prior to the alleged incident of June 20, 2017? And if it
were true that the land was previously owned by his father,
Marcelino Rodriguez, Sr., before it was foreclosed by DBP, why
did plaintiff not present any document or even a single tax
declaration in his father's name to buttress his claim of
ownership thereof?
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Page 8 of 27

In the light of the foregoing, the court finds that the

plaintiff was not able to substantiate by adequate evidence his
allegation of actual and physical possession of Lot 1442-D prior
to the alleged dispossession by the defendants on June 20,
2017.

In contrast, it is the defendants who were able to prove by

preponderance of evidence that they are the actual and
physical possessors of the land subject of this case long before
the alleged incident of June 20, 2017. The testimonies of
witnesses Jean Rodriguez who acted administrator of Lot 1442
for a long time and thus, a credible witness to testify as to the
ownership and possessors of the land, the testimony of Marilou
Cuadoro Nepomuceno and Aniano B. Cuadoro who, and whose
families, are actually occupying and tilling Lot 1442 for and
along with the family of the defendants, the series of tax
declarations issued in the names of defendants' predecessors-
in-interest, and the Certifications issued by the Office of
Punong Barangay of Barangay Morales showing actual
cultivation of the defendants' family on the subject property, had
substantially supported the claim of defendants that they are
the ones in possession of the land in question prior to, or long
before June 20, 2017, and not the plaintiff as alleged in the
Complaint.”

18. As found by the lower court, plaintiff-appellant was not able to

adequately prove by preponderance of evidence that he was the actual
and physical possessor of the land subject of this case long before the
alleged incident of June 20, 2017 because he merely presented the
testimony of Rogelio Neron who merely testified that plaintiff's family
had been cultivating the riceland in the said barangay for a long time
and that he knew this for a fact because when he was still a teenager,
he used to help plaintiff's parents. He even did not mention that it was
a help to cultivate the land, but merely he helped the parents. Thus, the
lower court was correct when it ruled that the statements of witness
Rogelio Neron was too sweeping to believe as his testimony is
apparently bereft of any specific showing how the said Rodriguez
family, and specifically the plaintiff, farmed the land in controversy.

On plaintiff-appellant’s claim on the presumption of the regularity in the

issuance of the said CLOA by the DAR. (Page 5 of Appellant’s Memorandum)

19.It is clear that the issued agreed by the parties during the preliminary
conference are only the following:

I. Who, between the plaintiff and the defendants, was/ were in

actual and physical possession of Lot No. 1442- D prior to June
20, 2017?

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II. Was the plaintiff unlawfully deprived of the possession of the land
in question by the defendants through force, intimidation,
strategy, threat or stealth?

III. Who, between the plaintiff and the defendants, are entitled to
damages?

20.Hence, whether or not the said CLOA was issued with regularity by the
Department of Agrarian Reform (DAR), is not an issue in the instant
case. Moreover, discussing the validity of the CLOA will divest the court
of its jurisdiction as any question regarding the issuance of CLOA is
under the jurisdiction of DAR or DARAB.

“In Nuesa v. Court of Appeals,1 the Court, in addition to re-

echoing the jurisdiction of the DARAB, puts emphasis on the extent
of the coverage of the term "agrarian dispute," thus:

As held by this Court in Centeno v. Centeno [343 SCRA 153],

"the DAR is vested with the primary jurisdiction to determine and
adjudicate agrarian reform matters and shall have the exclusive
jurisdiction over all matters involving the implementation of the
agrarian reform program." The DARAB has primary, original and
appellate jurisdiction "to determine and adjudicate all agrarian
disputes, cases, controversies, and matters or incidents involving the
implementation of the Comprehensive Agrarian Reform Program
under R.A. 6657, E.O. Nos. 229, 228 and 129-A, R.A. 3844 as
amended by R.A. 6389, P.D. No. 27 and other agrarian laws and their
implementing rules and regulations."

Under Section 3(d) of R.A. 6657 (CARP Law), "agrarian

dispute" is defined to include "(d). . . any controversy relating to
tenurial arrangements, whether leasehold, tenancy, stewardship or
otherwise over lands devoted to agriculture, including disputes
concerning farmworkers associations or representation of persons in
negotiating, fixing, maintaining, changing or seeking to arrange terms
or conditions of such tenurial arrangements. It includes any
controversy relating to compensation of lands acquired under this Act
and other terms and conditions of transfer of ownership from
landowners to farmworkers, tenants and other agrarian reform
beneficiaries, whether the disputants stand in the proximate relation
of farm operator and beneficiary, landowner and tenant, or lessor and
lessee." (Underlining ours)

Taking instructions from the foregoing discussion, the instant

case being one for annulment of CLOA, an incident involving the
implementation of the CARP, and a matter relating to terms and
conditions of transfer of ownership from landlord to agrarian reform
beneficiaries, jurisdiction is properly vested with the DARAB.

1
G.R. No. 132048, 06 March 2002, 378 SCRA 351, 361-362.
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Still, in corroboration is Section 1(1.6), Rule 2, of the 2003

DARAB Rules of Procedure which explicitly vests upon the
adjudicator the primary and exclusive original jurisdiction to
determine and adjudicate cases involving the correction, partition,
cancellation, secondary and subsequent issuances of CLOAs. The
DARAB under Section 2 of the same Rule is vested with the
exclusive appellate jurisdiction to review, reverse, modify, alter or
affirm resolutions, orders, and decisions of its adjudicators.” 2

21.Furthermore, defendants-appellees likewise manifested in the lower

court and submitted an evidence marked as Exhibit “15” that sometime
in June 2017, defendants-appelles already filed a Letter-Complaint
against herein plaintiff-appellant involving the cancellation of the CLOA
covering the subject property issued to herein plaintiff-appellant with
the DAR.

On the claim that plaintiff-appellant presented Rogelio Neron and Isagani

Neron as his witnesses to prove possession prior to the alleged dispossession.

22.As discussed earlier, in the testimony of Rogelio Neron, he merely

claimed that he came to know that plaintiff-appellant cultivated the
property only because during his teenage years, he used to help the
deceased parents of plaintiff-appellant. The said allegation without any
basis and specifics as to how plaintiff-appellant actually possessed and
cultivated the land can never be considered sufficient to establish
preponderance of evidence of prior possession. Assuming that he
helped the parents of plaintiff-appellant in the subject property, he still
did not have the personal knowledge why the plaintiff-appellant’s
parents were working there. They might just be hired as helpers by
defendants-appellees.

23.The testimony of Isaganie Neron cannot be used and discussed

anymore because Isagani already executed an affidavit withdrawing his
Judicial Affidavit as a witness. The affidavit of withdrawal is hereto
attached as Annex “1”and made an integral part hereof. In fact,
another witness of plaintiff-appellant, Donoso Neron, likewise withdrew
his testimoy. Affidavit of Withdrawal of Donoso Neron is hereto
attached as Annex “2”and made an integral part hereof.

24.Assuming for the sake of argument that Isagani Neron did not withdraw
the case, perusal of his Judicial Affidavit also shows that his allegations
are too sweeping to believe as he only claimed the same as to Rogelio
Neron; that he only came to know that plaintiff-appellant cultivated the
property because during his teenage years, he used to help the
deceased parents of plaintiff-appellant. They both did not even mention
in what instances did they help the parents of plaintiff-appellant.
2
PHILIPPINE VETERANS BANK vs. HON. COURT OF APPEALS, LAZARO CRUZ, FRANCISCO T. CRUZ,
Provincial Agrarian Reform Officer ERLINDA PEARL V. ARMADA, DAR Provincial Adjudicator HON. GREGORIO D.
SAPERA and THE REGISTER OF DEEDS OF THE PROVINCE OF BULACAN, G.R. No. 132561, June 30, 2005.

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On plaintiff-appellant’s claim that the original owner and possessor,

Incocentes Jimera is the late brother of the mother of plaintiff-appellant, Tali
Jimera Rodriguez was perjurious. In fact, this was never raised in his complaint
and perjurious.
25.Plaintiff-appellant now claims in his Memorandum that the predecessor
of herein defendants-appellants, the late Inocentes Jimera is his uncle
or the brother of his mother, Tali Jimera Rodriguez. This allegation was
never raised in his Complaint. What is more, this allegation is
perjurious because his mother, a certain Tali, is not a sister of
Inocentes Jimera.

26.As explained in the Judicial Affidavit of Jean Rodriguez, Tali is not a

relative but a former helper of the family of Rizal Rodriguez, the father
of herein defendant-appellee, Felomina Pastolero; that the late
Inocentes Jimera is the brother of the mother (Felomina Jimera
Rodriguez) of the husband (Bernardo Rodriguez) of Jean Rodriguez
and Rizal Rodriguez. A copy of the Family Tree is hereto attached as
Annex “3” and made an integral part hereof.

On plaintiff-appellant’s claim that the Municipal Circuit Trial Court did not
give weight to the Subdivision Plan.

27.The subdivision plan is not an evidence that plaintiff had possession of

the subject property prior to June 20, 2017. It was only a document
showing subdivision of the entire Lot 1442.

On plaintiff-appellant’s claim that it is not true that he admitted during the

preliminary conference that he did not apply as farmer-beneficiary .

28.To prove that plaintiff-appellant has the propensity to lie, it is

respectfully submitted herein the certified true copy of the Transcript of
Stenographic Notes (TSN) covering the proceedings taken during the
Preliminary Conference on November 27, 2018, hereto attached
Annex “4”. The pertinent portion of the TSN provides that, to quote:

“ATTY. IBARRETA:

Will the plaintiff admit he applied as farmer beneficiary of the

subject lot on March 13, 1999?

ATTY. PESCASIOSA:

We denied that fact, Your Honor, rather the DAR was the one
who awarded the plaintiff this farmer beneficiary. We did not apply.” 3

On plaintiff’s claim that the testimony of Jean Rodriguez is self-serving

and cannot be given due credence by the court because she is the aunt of
defendants-appelles.
3
Page 4 of Transcript of Stenographic Notes (TSN)
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29.If the testimony of Jean Rodriguez is self-serving and cannot be given

due credence by the court then the testimony of Rogelio Neron, which
is the only witness presented by plaintiff-appellant to prove prior
possession should not have also been presented by plaintiff-appellant
since Rogelio is the first cousin of plaintiff-appellant.

30.It is to be noted that the testimony of Jean Rodriguez being the

administrator of the subject property for several years is backed up by
documents.

On plaintiff-appellant’s claim that complaint with the DAR was only filed in
2017.

31.The letter complaint filed by defendants-appellees with the DAR was

filed on June 20, 2017 or almost a year or before the complaint for
Forcible Entry was filed by plaintiff-appellant with the Municipal Trial
Court on April 19, 2018.

32.On the other hand, as correctly found by the lower court, defendants-
appelles were able to prove by preponderance of evidence that they
are the actual and physical possessors of the land subject of this case
long before the alleged incident of June 20, 2017.

33.The evidence for the defendants-appelles are as follows:

33.1. Judicial Affidavit of the witness, Jean Rodriguez, (Exhibit “25”),

wherein she narrated that since 1964, the family of defendants have
been in actual and physical possession prior to June 20, 2017.

In her Judicial Affidavit, she stated that, to quote:

“11. Q - Are you familiar with the real property subject

matter of this case?
A - Yes. As the administrator from 1976 up to 1985, I
always visited the subject property.

12. Q - Can you describe the subject property?

A - Yes. The subject property is a parcel of land with
Lot No. 1442 located in Morales, Balete, Aklan. Before it was
mortgaged to and consolidated in the name of DBP in 1984, the
subject property was occupied and cultivated by the following:

1. Inocentes Jimera with Tax Declaration No. 1172

effective in 1948;
2. Lovell R. Obrique with Tax Declaration No. 5347
effective in 1965;

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Page 13 of 27

3. Lovell R. Obrique with Tax Declaration No. 2799 which

cancelled Tax 5347, effective in 1974;
4. Robin Abello with Tax Declaration no. 3956 effective in
1977;
5. DBP with Tax Declaration No. 3731 effective in 1985.

13. Q - Are you familiar with the history of the tax

declarations of the subject property?
A - Yes, I am familiar being the administrator of the
subject property from 1976 up to 1985 under the name of
Robin Abello. I am also familiar being the wife of the late
Bernardo Rodriguez, who was the nephew of the original
owner, Inocentes Jimera; and sister –in-law of the previous
owner and possessor of the subject property, Lovell
Obrique. I have the personal knowledge of the actual
possessors and tillers of the subject property from the time
Uncle Inocentes Jimera sold the same to my sister- in-
law, deceased Lovell Rodriguez Obrique, up to the present.

14. Q –Can you tell us the history of the Tax Declarations,

which you earlier identified?
A – Yes. The subject property was owned by the uncle
of my husband Bernardo Rodriguez sometime in 1940’s as
evidenced by Tax Declaration No. 1172. Then, in 1964,
Inocentes Jimera sold it to my sister-in-law, Lovell Obrique
as evidenced by Tax Declaration No. 2779, and the Entry in the
said Tax Declaration, which states that, to quote “Transferred
by virtue of Deed of Absolute Sale executed by Inocentes
Jimera in favor of Lovell R. Obrique before Notary Public
Emilio C. Nabor dated October 8, 1964, Doc. No. 88; Page
No. 20; Book No. III; Series of 1964”.

Then, in 1973, Lovell Obrique died. Thus, she was

substituted by her husband Josue Obrique in the
cultivation of the said property. In 1976, Josue Obrique sold
the subject property to Robin Abello as evidenced by Tax
Declaration No. 3956 in the name of Robin Abello, and its
Entry, which states that, to quote: “Transferred per Deed
of Confirmation of Sale executed by Josue S. Obrique before
the Notary Public Cirilo Iligan for Aklan dated Sept. 22, 1976
Doc. No. 1353; Page no. 56; Book No. 29; Series of 1976.

Then, in 1984, the subject property was transferred from

Robin Abello to DBP by virtue of Deed of Sale and Affidavit of
Consolidation of Ownership as evidenced by Tax Declaration
No. 3731, and its Entry, which states that, to quote, “Formerly
declared and assessed in the name of Rubin Abello and now
transferred in the name of Development Bank of the Philippines
by virtue of Deed of Sale & and an Affidavit of Consolidation of
Ownership executed before Notary Public, Daniel Martelino
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Page 14 of 27

for Aklan and entered in the Notarial registry as Doc. No. 127
& 126; Page No. 27; Book No. IX; Series of 1984.

15. Q- Do you have proofs to the history of the said Tax

Declarations?
A- Yes. I have here copies of Tax Declaration No. 1172
effective in 1948; Tax Declaration No. 5347 effective in 1965;
Tax Declaration No. 2799 which cancelled Tax 5347,
effective in 1974; Tax Declaration No. 3956 effective in 1977;
Tax Declaration No. 3731 effective in 1985.

16. Q-Are you familiar with the history of the actual

possessors and tillers of the subject property?
A- Yes.

17. Q – Can you tell us about the same?

A- Yes. It was Lovell Rodriguez who was the actual
possessor of the property from the time she bought it from their
uncle, Inocentes Jimera in 1964. When Lovell died in
1973, she was replaced in the cultivation of the property by
her husband, Josue Obrique, sister Concejo Rodriguez, her
brother and my husband Bernardo Rodriguez and their eldest
brother, Rizal Rodriguez. Then, in 1976, Lovell’s husband,
Josue Obrique, sold it to Robin Abello but with an agreement
that the actual tillers will remain in the farm, until
Bernardo’s death in 1986, who was replaced by the
Cuadoro family (Elpidio, Marilou and Jesusito, all surnamed
Cuadoro), and Concejo’s death in 1995, who was
replaced by Felomina Pastolero, Joel Obrique and Bernardo
“Borjie” Rodriguez, Jr,. Then, Bernardo “Borjie” Rodriguez,
Jr. was also replaced by his son, Jan Karlo Rodriguez in 2004.
In fact, even though it was already foreclosed by and
consolidated in the name of DBP, the possession had never
been taken away from our family. That since time immemorial
up to the present, our family has enjoyed continuous, peaceful
and uninterrupted possession and ownership over Lot 1442
until Rodelino Rodriguez started to threaten them.

18. Q – In plaintiff’s complaint, he alleged of a portion of

Lot 1442 purportedly identified as Lot 1442-D which he
claimed to have been awarded to him by virtue of a collective
CLOA issued by DAR, are you familiar with the said Lot
1442-D?
A - No, Ma’am. A careful scrutiny of this electronic copy
of the collective CLOA with its official receipt would show that
Lot 1442 issued in the names of Marilou
Nepomucino, Elpidio and Jesusito Cuadoro,Felomina Andrade,
Rodelino Rodriguez, Melita Obrique, has not yet been
subdivided among the said beneficiaries. More so, that the
particular portion to be given to each beneficiary has not
14
Page 15 of 27

yet been identified, especially that it is provided in the

collective CLOA that it is still subject to inclusion of other
beneficiaries. Thus, that the portion to be given to each
beneficiary can only be identified when “Individual
CLOA” is issued by the DAR. Further, the Certification
dated May 17, 2018 issued by the DAR stated that OCT
No. CLOA 9567 in the name of Elpedio Cuadoro, et al.
was issued, however, the subject landholding has not
been processed for redocumentation/claim folder preparation
by reason of the Certification issued by the LRA dated April 24,
2010, that said landholding appears to overlap with Plan Psu-
23041, Lot 4, decreed in GLRO Record No. 25725. So, it can
be said that based on the records of DAR, LRA and Registry
of Deeds (RD), there is yet no particular portion awarded
to the alleged beneficiaries. “

33.2.Judicial Affidavit of MARILOU NEPOMUCINO, (Exhibit “26”)

adjoining owner and one of the named beneficiaries of the CLOA,
she testified that plaintiff has never been in actual and physical
possession of Lot 1442, to wit:

“xxx
3. Q: Kilala mo ba ang plaintiff sa nasabing kaso na
ito?
A: Opo. Kilala ko po siya dahil sya po ang lumabas
na kasama naming sa collective CLOA na na-issue ng DAR. Sya
rin po ang aming hinainan ng protesta sa DAR bandang 2004 at
pagkatapos ay hinainan ng Petition for Disqualification sa DARAB,
DAR, Ioilo City sa kadahilanang hindi nman sya nag-okupa at
nagsaka kailanman ng kahit anong portion ng Lot 1442.

4. Q: Kilala mo din ba ang mga defendants sa

nasabing kaso na ito?
A: Opo, kilala ko rin po silang lahat dahil sila po ang
mga kasama kong nag-ookupa at nagbubungkal sa Lot 1442. Sa
katunayan po ay yung nanay po ni Borjie Rodriguez ang naging
administrador ng Lot 1442 kung saan ay pinayagan kaming
magsaka at mag-okupa mula noong 1976.

Si Felomina Pastolero naman po at ang asawa nya na si

Bebot Pastolero ang nagsasaka sa kabilang parte ng lupa.

Si Mylene Obrique Bacayana at Gil Obrique po ay kilala ko

bilang kapatid ni Melita Obrique at Joel Obrique, na ang nasabing
dalawang huli ay nagsasaka naman sa kabila ding parte ng lupa
ng Lot 1442.

5. Q: Pamilyar ka ba sa nasabi mong lupa na Lot

1442?

15
Page 16 of 27

A: Opo. Ang lupa pong ito ay makikita sa Sityo

Awayon, Brgy. Morales, Balete, Aklan na may 138, 292 square
meters. Ito ay dating pag-aari at sinasaka ng pamilya ni Lovell
Obrique, pagkatapos ni Robin Abello at naisangla at naging pag
aari ng DBP at naipasailalim sa agrarian reform.

6. Q: Ano ang nangyari noong napasailalim ito sa

agrarian reform?
A: Dahil kami po ay nagsaka na ng ibang parte ng
lupa sa Lot 1442 mula pa noong 1976 kami po ay nag-apply sa
DAR para maging beneficiary ng ibang portion ng lupa ng Lot
1442 noong 1999.

7. Q: Nasabi mong “kami”. Sinu-sino ba kayo na

nagsaka ng ibang parte ng lupa ng Lot 1442 at nag-apply bilang
beneficiary ng agrarian reform?
A: Ang tatay po namin na si Elpidio Cuadoro at mga
kapatid ko po na sina Luisito Cuadoro at Jesusito Cuadoro.

8. Q: Ano ang nangyari pagkatapos niyong mag-

apply?
A: Kami po ay nabigyan ng collective CLOA noong
taong 1999. Pero nang amin pong tinanong ang DAR kung kailan
kami mabibigyan ng individual CLOA para po ma-identify na ang
mga parte namin sa Lot 1442, sabi po sa amin ng DAR ay hindi pa
maproseso para sa redocumentation at claim folder preparation
dahil ang Lot 1442 po ay nag-overlap sa Plan Psu-23041, Lot 4
decreed in G.L.R.O Record no. 25725. Kaya sa ngayon po, kahit
mayroon po kaming parteng sinasaka, ay hindi pa po talaga na-
identify sa collective CLOA at hindi pa po kami nabigyan ng
individual CLOA.

9. Q: Nasabi mo na nabigyan kayo ng collective

CLOA, pag ipinakita ba sa iyo ang dokumentong ito ay masasabi
mo kung ito mismo ang collective CLOA na sinasabi mo?
A: Opo.

10. Q: Ipinapakita ko sa iyo ang kopya ng CLOA na ito,

pakisabi po kung ano ang relasyon ng nasabi mong collective
CLOA sa dokumentong pinapakita ko sa iyo ngayon?
A: Yan po ang sinasabi kong collective CLOA na na-issue
sa amin ng DAR.

11. Q: Ano pa po ang masasabi mo tungkol sa

collective CLOA na ito?
A: Nang ang collective CLOA po ay na-issue sa
amin, nakita po namin na nakasama si Rodelino Rodriguez. Kaya
kami po ay lumapit kay Gng. Felomina Pastolero upang kami po
ay maghain ng protesta sa DAR noong bandang 2004 dahil unfair
naman po sa amin na bigyan din ng portion ng lupa ang isang
16
Page 17 of 27

taong hindi naman namin nakita kailanman na nagsaka at nag-

okupa sa kahit anong parte ng Lot 1442.

12. Q: Paano mo nasabing kailanman ay hindi nag-

okupa at nagsaka ng lupa sa Lot 1442 si Rodelino Rodriguez?
A: Ang Lot 1442 po ay 138, 292 square meters lamang.
At apat po kami sa pamilya na nagsaka sa ibang parte ng lupang
iyan. Kaya imposible pong hindi namin makita kung sino ang
nagsaka at nag-okupa sa lupang iyan. Isa pa po, ay alam namin
sa mga panahon na kami ay nag-apply sa DAR noong bandang
1999 bilang beneficiary, si Rodelino Rodriguez po ay kilalang-
kilalang pulis kaya siya po ay disqualified.

13. Q: Pakisabi uli kung sinu-sino ang nakita mong nag-

ookupa at nagsasaka sa Lot 1442?
A: Mula noong bandang 1989 at hanggang
ngayong araw na ito, ang personal po naming nakikita na kasama
naming nagsasaka at nag-ookupa ng lupang Lot 1442 ay sina
Felomina Pastolero, Melita Obrique, Joel Obrique, at Borjie
Rodriguez na pinalitan ng kanyang anak na si Jan Karlo
Rodriguez noong bandang 2004, at kami pong mag-anak na si
Elpidio, Luisito at Jesusito.

14. Q: Nasabi ninyong kayo ay naghain ng protesta sa

DAR. May katunayan ba kayo dito?
A: Noong una po bandang 2004 ay nag represent
sa amin si Gng Felomina Rodriguez at yung pangalawa ay kami
na mismo ang pumirma at naghain ng Petition for Disqualification
sa DARAB, DAR Regional Office sa Iloilo City laban kay Rodelino
Rodriguez dahil hindi po sya kailanman nag-okupa at nagsaka ng
Lot 1442 at sa kadahilanan pa pong siya ay disqualified dahil sya
po ay isang active na myembro ng PNP ng panahon ng aplikasyon
noong bandang 1999.

15. Q: Ipinapakita ko sa inyo ang kopya ng Petition for

Disqualification pakisabi po kung ano ang relasyon ng nasabi
ninyong Petition for Disqualification sa dokumentong pinapakita ko
sa inyo ngayon?
A: Yan po ang sinasabi kong Petition for
Disqualification laban kay Rodelino Rodriguez.

16. Q: Pagkatapos nito, ano ang nangyari?

A: Ang petisyon po naming ito ay pending pa sa
opisina ng DARAB.

17. Q: Nasaan ka noong June 19, 2017?

A: Ako po ay nasa Lot 1442 noong araw na iyon.

18. Q: May alam ba kayong nang yari noong June 19,

2017, kung mayroon man?
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Page 18 of 27

A: Wala po akong nakitang kahit anong komosyon

ng araw na iyon.”

33.3. Judicial Affidavits of witnesses ANIANO CUADORO, who is

the worker of defendants-appellees in Lot 1442 and JESUSITO
CUADORO, adjoining owner and actual tiller of the adjoining
property, who also testified (marked as Exhibits “27” and “28”), that
plaintiff-appellant has never been in actual and physical possession
of the subject property.

33.4. Defendants-appelles likewise submitted the following

documents to prove actual prior and present physical possession of
the subject lot prior to June 2017, to wit:

a. Tax Declaration No. 1172 effective in 1948 in the name

of Inocentes Jimera marked as Exhibit 19;
b. Tax Declaration No. 5347 effective in 1965 in the name
of Lovell Rodriguez marked as Exhibit 20;
c. Tax Declaration No. 2799 effective in 1974 in the name
of Lovell Rodriguez was previously marked as Exhibit “16;
d. Tax Declaration No. 3956 effective in 1977 in the name
of Robin Abello was previously marked as Exhibit “4” attached to
the Judicial Affidavit of Felomina Pastolero;
e. Tax Declaration No. 3731 effective in 1985 in the name
of Robin Abello be marked as Exhibit “21”.
f. Likewise, the Entry in Tax Declaration No. 5347
effective in 1965 in the name of Lovell Obrique, which states that,
to quote “Transferred by virtue of Deed of Absolute Sale executed
by Inocentes Jimera in favor of Lovell R. Obrique before Notary
Public Emilio C. Nabor dated October 8, 1964, Doc. No. 88; Page
No. 20; Book No. III; Series of 1964”, marked as Exhibit “22”;
g. Entry in Tax Declaration No. 3956 in the name of Robin
Abello, which states that, to quote: “Transferred per Deed of
Confirmation of Sale executed by Josue S. Obrique before the
Notary Public Cirilo Iligan for Aklan dated Sept. 22, 1976 Doc. No.
1353; Page no. 56; Book No. 29; Series of 1976, was previously
marked as Exhibit “5”;
h. Entry in the Tax Declaration No. 3731 in the name of
Development Bank of the Philippines (DBP), which states that, to
quote “Formerly declared and assessed in the name of Rubin
Abello and now in the name of the Development Bank of the
Philippines by virtue of Deed and Affidavit of Consolidation of
Ownership executed before Notary Public I. Martelino for Aklan
and entered in his Notarial registry as Doc No. Page No. 27, Book
No. IX, Series of 1984”, marked as Exhibit “23”.
i. Exhibit “10” – Certification issued by the Punong
Barangay of Barangay Morales, Balete,Aklan dated May 18,
2018.
j. Exhibit “11” – Certification issued by the Punong
Barangay of Barangay Morales, Balete, Aklan.
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Page 19 of 27

k. Exhibit “7” - Certification dated May 16, 2018.

l. Exhibit “9” -Certification dated May 10, 2018.

m. Certified True Copy of the Letter-Complaints filed with

the DAR marked as Exhibit “3” and Exhibit “15”, respectively.

34.For a forcible entry suit to prosper, the plaintiffs must allege and prove:
(a) that they have prior physical possession of the property; (b) that
they were deprived of possession either by force, intimidation, threat,
strategy or stealth; and, (c) that the action was filed within one (1) year
from the time the owners or legal possessors learned of their
deprivation of the physical possession of the property.

35.There is only one issue in ejectment proceedings: who is entitled to

physical or material possession of the premises, that is, to possession
de facto, not possession de Jure? Issues as to the right of possession
or ownership are not involved in the action; evidence thereon is not
admissible, except only for the purpose of determining the issue of
possession.

36.Moreover, Section 1, Rule 70 of the Rules of Court, requires that in

actions for forcible entry, it must be alleged that the complainant was
deprived of the possession of any land or building by force,
intimidation, threat, strategy, or stealth, and that the action was filed
anytime within one year from the time the unlawful deprivation of
possession took place.

37.This requirement implies that in those cases, possession of the land by

the defendant has been unlawful from the beginning, as the
possession was obtained by unlawful means. Further, the complainant
must allege and prove prior physical possession of the property in
litigation until he or she was deprived thereof by the defendant.

38.Possession in a forcible entry suit refers only to possession de facto, or

actual or material possession, and not one flowing out of ownership.
These are different legal concepts under which the law provides
different remedies for recovery of possession. Thus, in a forcible entry
case, a party who can prove prior possession can recover the
possession even against the owner. Whatever may be the character of
the possession, the present occupant of the property has the security
to remain on that property if the occupant has the advantage of
precedence in time and until a person with a better right lawfully
causes eviction.

39.The Court has consistently ruled in a number of cases that prior

physical possession is an indispensable requirement in forcible entry
cases. Thus, the ultimate question here is who had prior physical
possession of the disputed land.

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Page 20 of 27

40.In this case, the plaintiffs’ evidence inadequately proved their claim that
they have a case of forcible entry against the defendants. The plaintiff
failed to prove and present evidence that he had prior actual, material,
or de facto possession of the said Lot 1442-D. The subdivision plan is
not a conclusive proof of his right to possess, either actual or de facto
possession, of the said land. In fact, it is undisputed that the
defendants were occupying the land in the concept of an owner as
early as 1948 even until the land was mortgaged to DBP and
sufficiently established by their evidence of tax declarations; testimony
of the independent witnesses and adjoining owners; entries in the tax
declarations of assignments from the predecessors to successors of
defendants made by a government agency, the Office of the Municipal
Assessor of Altavas, Aklan; and Certifications of the Punong Barangay
that plaintiff has never occupied or tilled the subject property, and who
stated that defendants were known cultivating and occupying said
property prior to June 2017. These are very important evidence that
establish preponderance of evidence of possession of the Lot 1442 in
favor of defendants.

41.In EVANGELINE RIVERA-CALINGASAN and E. RICAL

ENTERPRISES, Petitioners, vs.WILFREDO RIVERA, substituted by
MA. LYDIA S. RlVERA, FREIDA LEAH S. RIVERA and WILFREDO S.
RIVERA,.JR., Respondents, G.R. No.171555, April 17, 2013, the
Honorable Supreme Court was elucidating:

“Ejectment cases involve only physical possession or possession de

facto. Ejectment cases - forcible entry and unlawful detainer - are
summary proceedings designed to provide expeditious means to
protect actual possession or the right to possession of the property
involved. The only question that the courts resolve in ejectment
proceedings is: who is entitled to the physical possession of the
premises, that is, to the possession de facto and not to the possession
de jure. It does not even matter if a party's title to the property is
questionable."23 Thus, "an ejectment case will not necessarily be
decided in favor of one who has presented proof of ownership of the
subject property."

Indeed, possession in ejectment cases "means nothing more than

actual physical possession, not legal possession in the sense
contemplated in civil law." In a forcible entry case, "prior physical
possession is the primary consideration."

42.Here, defendants have proven prior physical possession of the

property.

43.The plaintiff’s claim of physical possession cannot find support in the

self-serving statements of his sibling or relative that plaintiff was in
physical possession prior to June 2017. As a matter of fact, it is to be
noted that two of his witnesses withdrew his testimony in this case.

20
Page 21 of 27

44.Assuming for the sake of argument that plaintiff presented a CLOA

wherein his name was included, still, the fact, however, that there is still
a pending case of disqualification regarding his being a beneficiary of
the said CLOA filed as early as 2004 with the DAR by defendants does
not make plaintiff entitled to the possession of the said subject
property. More so, that the CLOA presented is a collective CLOA and
has never identified that the portion Lot 1442-D is being awarded to
plaintiff. It may be different if he was able to present an individual
CLOA identifying the portion awarded to him.

45.Additionally, In the Certification dated May 17, 2018 issued by the

Department of Agrarian Reform marked as Exhibit “1” it states that the
subject lot no. 1442, Psc-34 with an area of 13, 8292 hectares located
in Morales, Balete, Aklan has been covered by the DAR pursuant to RA
6657, of which corresponding CLOA, OCT No. CLOA-9567 in the
name of Elpedio J. Cuadoro et al., was issued, however, said CLOA
has not been processed for redocumentation/claim folder preparation
by reason of the Certification issued by the Land Registration Authority
(LRA) dated 24 April 2012 that said landholding appears to overlap
with Plan Psu-23041, Lot 4, decreed in G.L.R.O. record No. 25725.

46.Indeed, it has been established that the basis of his alleged ownership,
which is the Collective Certificate of Land Ownership Award is still
pending investigation with the DAR.

47.That the inclusion of plaintiff’s name in the Collective CLOA is still

subject of a thorough investigation by the DAR. In the same
Certification issued by DAR, it states that a letter-complaint dated June
20, 2017 (hereto marked as Exhibit “2”) was filed by herein defendant
Felomina Pastolero, formerly Felomina Andrade and a certain Joel
Obrique before the DAR assailing the qualification of plaintiff as a
farmer-beneficiary. In their Letter-Complaint dated June 20, 2017,
which is already a follow-up letter of their complaint filed immediately
after they learned of the issuance of the said Collective CLOA
sometime in 2004, wherein herein plaintiff was named as one of the
beneficiaries, Felomina Andrade and Joel Obrique seek the
cancellation of the said collective CLOA issued by the DAR to herein
plaintiff on the following grounds:

a. That Rodelino Rodriguez is not qualified as farmer beneficiary

because he is not the actual cultivator of any portion of Lot No.
1442;
b. That he is not residing in Brgy. Morales or in the Municipality of
Balete;
c. That he was an active member of the Philippine National
Police at the time of the approval of the Survey Plan in June 2004;
d.That they were surprised to learn that Rodelino Rodriguez was
listed as one of the beneficiaries in the CLOA considering that
defendant Felomina Andrade (now felomina Pastolero), Joel Obrique

21
Page 22 of 27

and Jan Karlo Rodriguez are the actual cultivators and

possessors of the subject lot.

48.On June 25, 2017, defendant Felomina followed-up the status of their
Letter-Complaint with the DAR. The DAR informed her that based on
the records of the office, a Memorandum dated June 22, 2017 was
already issued by the Provincial Agrarian Reform Officer II, Ma.
Theresa C. Valencia directing the Municipal Agrarian Reform Officer,
Marissa O. Mendoza, to conduct investigation and submit MARO’s
Investigation Report with Recommendation regarding the Follow-Up
Letter-Complaint of Felomina Andrade and Joel Obrique on erroneous
inclusion of FB on Lot No. 1442 PT.

49.Moreover, to prove his claim of having a better right to possession,

plaintiff submitted a copy of the Collective CLOA issued by the DAR.
The Supreme Court, however, has held in the case of Nenita Quality
Foods Corporation vs.Crisostomo Galabo, et al., G.R. No. 174191,
January 30, 2013, that:

“xxx To prove prior physical possession of Lot No. 102, NQFC

presented the Deed of Transfer, Santos’ OCT P-4035, the Deed of
Absolute Sale, and the Order of the Bureau of Lands approving Santos’
free patent application. In presenting these pieces of evidence, NQFC
is apparently mistaken as it may have equated possession that is at
issue as an attribute of ownership to actual possession. The latter type
of possession is, however, different from and has different legal
implications than the former. While these documents may bear weight
and are material in contests over ownership of Lot No. 102, they do not
per se show NQFC’s actual possession of this property.

We agree that ownership carries the right of possession, but

the possession contemplated by the concept of ownership is not
exactly the same as the possession in issue in a forcible entry
case. Possession in forcible entry suits refers only to possession
de facto, or actual or material possession, and not possession
flowing out of ownership; these are different legal concepts for
which the law provides different remedies for recovery of
possession. As we explained in Pajuyo v. Court of Appeals, and
again in the more recent cases of Gonzaga v. Court of Appeals, De
Grano v. Lacaba, and Lagazo v. Soriano, the word "possession"
in forcible entry suits refers to nothing more than prior physical
possession or possession de facto, not possession de jure or
legal possession in the sense contemplated in civil law. Title is
not the issue, and the absence of it "is not a ground for the courts
to withhold relief from the parties in an ejectment case. Emphasis
supplied.

50.Thus, in a forcible entry case, "a party who can prove prior
possession can recover such possession even against the owner
himself. Whatever may be the character of his possession, if he
22
Page 23 of 27

has in his favor prior possession in time, he has the security that
entitles him to remain on the property until a person with a better
right lawfully ejects him."4 Emphasis supplied.

51.Indeed, in De Grano v. Lacaba,G.R. No. 158877, June 16, 2009, 589

SCRA 148. it was explained that:

“x x x the word possession, as used in forcible entry and unlawful

detainer cases, means nothing more than physical possession, not
legal possession in the sense contemplated in civil law. When the law
speaks of possession, the reference is to prior physical possession or
possession de facto, as contra-distinguished from possession de jure.
Only prior physical possession, not title, is the issue. Issues as to the
right of possession or ownership are not involved in the action;
evidence thereon is not admissible, except only for the purpose of
determining the issue of possession.”

52.The burden of sufficiently alleging prior physical possession carries

with it the concomitant burden of establishing one’s case by a
preponderance of evidence. To be able to do so, respondents herein
must rely on the strength of their own evidence, not on the weakness
of that of petitioner. It is not enough that the allegations of a complaint
make out a case for forcible entry. The plaintiff must prove prior
physical possession. It is the basis of the security accorded by law to a
prior occupant of a property until a person with a better right acquires
possession thereof. (Abad v. Farrales, G.R. No. 178635, 11April 2011).

53.Therefore, respondents failed to discharge their burden of proving the

element of prior physical possession. Their uncorroborated claim of
that fact, even if made under oath, is self-serving. It does not amount to
preponderant evidence, which simply means that which is of greater
weight or is more convincing than evidence that is offered in
opposition. He who alleges must prove and the party having the onus
probandi must establish his case by preponderance of evidence.

54.Bearing the foregoing in mind, a thorough examination of the evidence

revealed that, indeed, the parties in peaceable quiet possession of the
property in question prior to June 2017 were herein defendants.

55.Moreover, the plaintiff failed to prove the he was unlawfully deprived by

the defendants to possess the land by the use of FORCE, THREAT,
INTIMIDATION, STRATEGY, OR STEALTH as required by law to
consider a case as forcible entry in an ejectment case. There were no
records nor police blotter reported by the plaintiff that there was an
incident of force or threat against his brother and workers by not more
than (20) twenty armed civilian men and some policemen.

56.The truth of the matter of the incident that took place on June 20, 2017
was even narrated by plaintiff himself in his police blotter, which copy of
4
Calingasan vs. Rivera, Jr., G.R. No.171555, April 17, 2013.
23
Page 24 of 27

the same was submitted by plaintiff before this Court as his evidence In
plaintiff’s police blotter and complaint, he alleged that on June 19,
2017, after
herein defendants confronted and threatened him to stop his workers
from working in the rice field, he went home to Kalibo, Aklan. The
following day, June 20, 2017, which is the alleged day of the incident,
while he was at his residence in Kalibo, Aklan, he was informed by his
brother thru cellphone that there were police officers of Balete Police
Station in the rice field together with the defendants. Then, a police
officer talked to him on the cellphone informing him if he could stop his
workers for the reason that there was a complainant for the possession
of the rice field which herein plaintiff agreed. Verily, nowhere in his
narration in the police that at the time of the incident or on June 20,
2017, defendants employed force, threat, intimidation, strategy and
stealth in order to stop plaintiff’s workers from working in the subject
lot. It was very clear that plaintiff agreed when asked by the police to
stop his workers who stealthy intruded and attempted to cultivate the
land. Also, there was no allegation in the police blotter contrary to his
allegation in the complaint that defendants brought along 20 civilian
armed men together with policemen of Balete Aklan. If this were true,
then, he should have filed a criminal case against the policemen and
herein defendants, but there was none.

57.That on June 19, 2018, herein defendant Felomina Pastolero merely

asked the assistance of the policemen to protect their possession in
accordance with law as herein plaintiff and his workers attempted to
take possession of the subject lot without the knowledge and consent
of defendants. It is undisputed that plaintiff attempted to work by
sending his men to Lot 1442 but they were immediately stopped by the
police. This fact is evidenced by the second paragraph of the
Certification dated May 10, 2018 issued by the Balete Municipal Police
Station marked as Exhibit “9”.

58.Paragraph 11 of the complaint also proves that plaintiff is lying because

only defendants FELOMINA PASTOLERO y RODRIGUEZ and BEBOT
PASTOLERO, have been in possession of the subject lot from 1995 up
to present while BERNARDO RODRIGUEZ, JR., MYLENE OBRIQUE
AND GIL OBRIQUE are not in possession of the same. Daily time
record of Mylene Obrique is also marked as Exhibit “14” to prove that
at the time of the alleged incident she was in her office.

59.Furthermore, copy of the Certification dated May 18, 2018 issued by

the Office of the Punong Barangay, Barangay Morales, Balete, Aklan is
marked as Exhibit “10” to prove that Jan Karlo Rodriguez, Felomina
Pastolero and Joel Obrique are known by the said office to be the
actual possessors and cultivators of Lot No. 1442-D located at
Barangay Morales, Balete, Aklan from 2004 up to present.

24
Page 25 of 27

60.To prove further that it was plaintiff who attempted and tried to
unlawfully deprive defendants of their peaceful possession of Lot 1442,
police blotters are hereto marked as Exhibits “7”, “8”, “9” and “12”.

61.That the act of the workers of plaintiff working in the rice field is not a
proof of plaintiff’s prior physical possession as it was the defendants
who were in possession at that time when plaintiff intruded without
defendants’ knowledge and consent. That was why when he was
asked by the police on the phone to stop his workers from plowing the
land, he readily agreed.

62.That in fact, before the alleged incident on June 20, 2017, plaintiff and
defendants Filomena and Mylene had appeared before the Office of
the Punong Barangay, Barangay Morales, Balate Aklan to possibly
settle the dispute over the subject lot with the plaintiff as the latter kept
on threatening to kill them. In the said barangay conciliation there was
no settlement reached. However, in the said barangay record as shown
in the Certification issued by the said Office of the Punong Barangay,
herein plaintiff did not question its contents particularly the entry that
states, to quote in dialect, “May 16, 2017 alas 9:00 ro oras sa agahon,
sanda ra ging husay iya sa opisina sa pamuno ni Hon. Jonise D.
Ambrocio Punong Barangay parti sa eogta nga ginakultibaran ag
ginaposisyunan nanday Filomena Pastolero, Jan Carlo Rodriguez and
Joel Obrique nga Makita an sa rayang Barangay Morales Sitio
Awayon.” (Empasis supplied) This only proves further that Filomena
Pastolero, Jan Carlo Rodriguez and Joel Obrique are the actual
cultivators and possessors of the subject lot.

63.That it was plaintiff who threatened to kill defendant Gil Obrique on

June 19, 2017 as recorded in the police blotter with Entry No. 06372
contrary to plaintiff’s allegation in the complaint that it was defendants
who threatened him. This fact is evidenced by the Fourth Paragraph of
the Certification dated May 10, 2018 issued by the Balete Police
Station marked as Exhibit “9”.

64.Furthermore, in the same Certification dated May 10, 2018 issued by

the Balete Police Station, third paragraph, shows that on June 19,
2017, the members of the PNP, Balete Police Station responded to the
complaint of defendant Felomina when plaintiff with a gun tucked in his
waist being a retired policeman, stopped Felomina to proceed to her
riceland. In the said paragraph, the police narrated the actions taken in
responding to Felomina’s complaint wherein the police just asked the
workers of plaintiff to stop from entering the subject property pending
further settlement contrary to the plaintiff’s allegations in the instant
complaint that defendants brought 20 armed men together with the
members of the PNP, Balete to forcibly dispossess plaintiff of the
subject lot.

65.Further, it is undisputed that defendants have been occupying the land

since 1948. So even assuming without admitting that plaintiff is indeed
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the owner of the premises subject of this suit and he was unlawfully
deprived of the real right of possession or the ownership thereof, in the
case of Sarmiento vs. CA, 320 Phil. 146 (1995), the Supreme Court
held that:

“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 one is the owner of the property, the
possession thereof cannot be wrested from another who had been
in the physical or material possession of the same for more than one
year by resorting to a summary action for ejectment. This is
especially true where his possession thereof was not obtained
through the means or held under the circumstances contemplated
by the rules on summary ejectment.

We have held that in giving recognition to the action of forcible

entry and unlawful detainer, the purpose of the law is to protect the
person who in fact has actual possession, and in case of a
controverted proprietary right, the law requires the parties to
preserve the status quo until one or the other sees fit to invoke the
decision of a court of competent jurisdiction upon the question of
ownership. “

66.It is worthy to note that at the time of the filing of this case, defendants
had been in physical possession of the property for more or less sixty
nine (69) years.

67. Verily, plaintiff-appellant has not sufficiently alleged and proved prior
physical possession, as well as petitioner’s entry and possession by
intimidation or force.

68.Section 1, Rule 70 of the Rules of Court, requires that in actions for

forcible entry, it must be alleged that the complainant was deprived of
the possession of any land or building by force, intimidation, threat,
strategy, or stealth, and that the action was filed anytime within one
year from the time the unlawful deprivation of possession took place.
This requirement implies that in those cases, possession of the
land by the defendant has been unlawful from the beginning, as
the possession was obtained by unlawful means. Further, the
complainant must allege and prove prior physical possession of the
property in litigation until he or she was deprived thereof by the
defendant. The one-year period within which to bring an action for
forcible entry is generally counted from the date of actual entry into the
land, except when entry was made through stealth; if so, the one-year
period would be counted from the time the plaintiff learned about it. 5

PRAYER

5
Ong v. Court of Appeals, 407 Phil 1045 (2001).
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WHEREFORE, it is respectfully prayed further of this Honorable Court that

the Decision dated February 28, 2019 rendered by the Municipal Circuit Trial
Court of Altavas Aklan dismissing the instant case be AFFIRMED.

Other reliefs just and equitable are likewise prayed for.

City of Parañaque for Kalibo, Aklan, August 9, 2019.

COS GUEVARRA & ASSOCIATES LAW OFFICES

Unit 201 Doña Eusebia Rodriguez Bldg.,
0611 Quirino Avenue, San Dionisio, Parañaque City
Telefax; 02 825 9918; Mobile No. 09989984009
By:

ATTY. MELANIE OBRIQUE-GUEVARRA

IBP No. 070285;01-21-19;Pasig City
PTR No. 1741150;01-17-19; Parañaque City
Roll No.56511

EXPLANATION

Copies of the foregoing Defendants-Appelles’ Memorandum were served

to the Honorable Court and plaintiffs’ counsel through registered mail
considering the distance and lack of manpower effect personal service to the
Honorable Court and plaintiff-appellant.

ATTY. MELANIE OBRIQUE-GUEVARRA

Copy furnished to:

ATTY. MARION R. MERCED – PESCASIOSA, CPA

Counsel for the Plaintiff-Appelant
Ground Floor, Aklan Catholic College Bldg., Archbishop Reyes St., Kalibo, Aklan

HON. PRESIDING JUDGE

SIXTH MUNICIPAL CIRCUIT TRIAL COURT
OF ALTAVAS AND BALETE
SIXTH JUDICIAL REGION
ALTAVAS, AKLAN

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