Republic of the Philippines

MUNICIPAL TRIAL COURT

Branch 1
Tagbilaran City

Ana San Pedro Civil Case No. 143

Plaintiffs,

-versus-

Maria Dela Cruz For: Unlawful Detainer

Defendants.
x------------------------------------------------x

POSITION PAPER
(FOR THE DEFENDANTS)

DEFENDANTS, through counsel, to the Honorable Court, respectfully submit this

Position Paper in support of the arguments in the Answer and the documentary evidence
attached therewith, thus:

PREFATORY STATEMENT

This is an ejectment suit filed under Rule 70 of the Rules of Court.

FACTUAL
ANTECEDENTS

Defendants have been in open, continuous, exclusive, notorious and adverse possession
IN THE CONCEPT OF AN OWNER AND FOR VALUE as early as 1971 over a portion of Lot 3663
situated in Linomot, Jones, Isabela, covered by and described in OCT No. I-513 of the Registry of
Deeds of the Province of Isabela, registered in the name of Bonifacio Failma. They derived their
right of ownership and possession from TOMAS FAILMA who ceded, sold, transferred and
conveyed the subject property for value in favor of TRESTAN CALUYA, one of the herein
defendants, as evidenced by an Acknowledgement Receipt dated August 28, 1973 which is
attached hereto as Exhibit “1” and Entry No. 294 dated November, 1971 of a Notarial Registry
certified to by the National Archives, copy of which is hereto attached as Exhibit “2”.

In a sudden turn of events, plaintiffs claim ownership of the entire lot covered by OCT
No. I-513, and anchored the same on their being the children of TOMAS FAILMA, son of the
primitive owner, BONIFACIO FAILMA. Plaintiffs aver that their father merely allowed defendants
during his lifetime to occupy the lot in issue. On August 23, 2014, plaintiffs demanded
defendants to vacate the property but defendants refused as they believe that they are the
owners. Thus, the plaintiffs filed the instant case for ejectment against the defendants.
The following issues were raised during the preliminary conference:

Whether defendants are entitled to the de facto possession of the subject real
property?;

Whether defendants have better right of possession over the subject realty?; and

Whether the defendants are liable for damages.

NATURE OF AN ACTION FOR EJECTMENT

Section 1, Rule 70 of the Rules of Court provides:

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

Forcible entry and unlawful detainer cases are two distinct actions defined in the afore-
cited provision. In Forcible Entry, one employs force, intimidation, threat, strategy or stealth to
deprive another of physical possession of the land, (Montanez vs. Mendoza, 392 SCRA 541).
Possession by the defendant of the subject property is unlawful ab initio.

On the other hand, Unlawful Detainer involves the person’s withholding from another of
the possession of real property to which the latter is entitled, after the expiration or
termination of the former’s right to hold possession under the contract, either expressed or
implied (Republic vs. Luriz, 513 SCRA 140). Possession by the defendant of the property is
originally lawful but becomes illegal by virtue of the termination of his right of possession under
his contract with the plaintiff, either expressed or implied, ( Tirona vs. Alejo, 367 SCRA 17).

In Go, Jr. vs. CA, 362 SCRA 755, it was adjudicated that tolerance must be present right
from the start of possession sought to be recovered to be within the purview of unlawful
detainer.

Basic is the rule that what determines the nature of the action and what court has
jurisdiction over it are the averments or allegations in the complaint and the character of the
remedy or relief sought. As in the case of unlawful detainer, the permission or tolerance must
be present at the outset or at the beginning of the possession. If not, a

case of forcible entry is the proper remedy. The time or period mandated by law should be
complied with. Otherwise, prescription steps into the picture (Notes and Cases on Ejectment,
Igmidio Cuevas Lat, p.1, 2005).

The nature of defendant’s entry into the land determines the cause of action. If entry is
illegal, it is Forcible Entry and the action must be filed within one year from the date of unlawful
intrusion. Otherwise, the appropriate action is Unlawful Detainer and should be filed within one
year from the time possession by the defendant became illegal.

The one year period within which to bring an action for forcible entry is reckoned from
the date of actual entry to the land, (Gener vs. De Leon, 367 SCRA 631). After the lapse of the
one-year period, the party dispossessed of a parcel of land can file either an accion publiciana
or accion reivindicatoria.

He who alleges must prove and the party having the onus probandi must establish his
case by preponderance of evidence.

DEFENDANTS’ POSITION AND ARGUMENTS

DEFENDANTS HAVE A BETTER RIGHT OF POSSESSION OVER THE SUBJECT REALTY THAN
THE PLAINTIFFS, AND ARE ENTITLED TO THE DE FACTO POSSESSION OF THE LOT IN ISSUE.

The plaintiffs’ complaint for unlawful detainer is fundamentally inadequate. There is

practically no averment as to when and how possession by tolerance of the defendants began.
In their complaint, the plaintiffs only made a general claim that the defendants possessed the
property upon their predecessor’s tolerance sans factual substantiation. In Spouses Valdez, Jr.
vs. CA, 523 Phil. 39 (2006), the Supreme Court ruled that the failure of the complainants to
allege key jurisdictional facts constitutive of unlawful detainer is fatal and deprives the MTCC of
jurisdiction over the action.

The plaintiffs’ evidence inadequately proved their claim that they have a case of
unlawful detainer against the defendants. Plaintiffs’ allegation that their predecessor in
interest, TOMAS FAILMA, uncle of defendant TRISTAN CALUYA, merely allowed the latter to
occupy the

land during his lifetime was not substantiated by any evidence. None of the evidence of the
plaintiffs support their claim that defendants’ possession of the land is merely by virtue of their
tolerance. Plaintiffs failed to aver and show as to how or when TOMAS FAILMA, their
predecessor, tolerated defendants’ possession of the land. Consequently, there was no contract
to speak of, whether expressed or implied, between the defendants, on one hand, and the
plaintiffs or their predecessor, on the other that would qualify the defendants’ possession of
the land as a case of unlawful detainer. Neither did the plaintiffs allege that defendants took
possession of the land through force, intimidation, threat, strategy or stealth to make out a
case of forcible entry.

On the contrary, defendants’ claim that their possession of the land which commenced
as early as 1971 in the concept of an owner was sufficiently established by their evidence
particularly the Acknowledgement Receipt dated August 23, 1973, wherein plaintiffs’
predecessors acknowledged receipt of the balance of TRISTAN CALUYA as appearing in the
Deed of Sale dated November 25, 1971 in full satisfaction of the sale of a one (1) hectare
portion of the land covered by OCT No. I-513 (Exhibit “1”), and Entry No. 294 dated November,
1971 of a Notarial Registry certified to by the National Archives, copy of which is hereto
attached as Exhibit “2”.

Moreover, the letter of invitation of TOMAS FAILMA to defendant TRISTAN CALUYA

(hereto attached as Exhibit “3”) inviting the latter to attend a conference regarding the
subdivision of the lot covered by OCT No. I-513 further bolsters defendants’ claim of possession
in the concept of an owner and negates the plaintiffs’ position that defendants possession is by
tolerance only of the plaintiffs.

Further, it is undisputed that defendants have been occupying the land since 1971. So
even assuming without admitting that the RTC decision in Civil Case No. 24 – 539 had divested
the defendants of their ownership of the lot in issue, and affirmed plaintiffs’ ownership thereof,
the defendants cannot be ejected therefrom through the summary action of ejectment. As held
by the Supreme Court in Sarmiento vs. CA, 320 Phil. 146 (1995), 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 (1) year by resorting to a summary action of ejectment. At this juncture, 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 forty four (44) years.

Indeed, if the plaintiffs are the owners of the subject property and they were unlawfully
deprived of the real right of possession or ownership thereof, they should present their claim
before the RTC 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.

Clearly, the plaintiffs’ evidence are not only inadequate to substantiate their claim
against the defendants. Their complaint failed to make out a case of forcible entry. Hence,
their complaint must necessarily fail. And even assuming for the sake of argument that the
complaint alleges forcible entry, the same action is barred by prescription based on the
arguments posited at the outset.

THE PLAINTIFFS ARE LIABLE FOR DAMAGES

Defendants’ reputation in the community had been tainted by reason of the plaintiffs’
baseless or unfounded allegations. Thus, defendants are liable for moral damages.

In the interest of public good and to dissuade others from filing a similar complaint,
plaintiffs should pay exemplary damages.

Since defendants were compelled to secure the services of a lawyer to protect their
rights and interests, plaintiffs should be ordered to pay the attorney’s fee and honorarium per
court appearance incurred by the defendants in the case at bar.

PRAYER

WHEREFORE, on the basis of all the foregoing, it is respectfully prayed that this position
paper be given due consideration in the resolution of this case and that judgment be
rendered in favor of the

defendants by DISMISSING the complaint for lack of merit, and to award the defendants
damages in such amount as the court may deem reasonable.

Other reliefs that are just and equitable under the premises are likewise prayed for.

Ilagan City for Jones, Isabela, July 22, 2015.

ATTY. RODERICK M. CRUZ

Counsel for the Defendants
Capitol Hills Subd.,
City of Ilagan, Isabela
Roll No. 46359
 PTR No. PGI 5968029/03-03-2015
IBP Receipt No. 962910/1-09-2015
MCLE Compliance No. IV-0024734
Valid from 1-29-2015 until 04-14-2016
MCLE Compliance No. V-0005915
Valid from April 15, 2016 to April 14, 2019
E-mail Add: cruz_RoderickM@yahoo.com

VERIFICATION

We, TRISTAN F. CALUYA, BIVIANA IBANA-CALUYA, MERLISTO LANO and LUALHATY

CALUYA-LANO, all of legal age, Filipinos, married and bonafide residents of Barangay Linomot,
Jones, Isabela, under oath, hereby depose and state as follows:

1. We are the defendants in the above-entitled Complaint;

2. We have caused the preparation and filing of the foregoing Position Paper;

3. We have read the contents thereof and the facts as stated therein are true and
correct and based on authentic records;

IN WITNESS WHEREOF, we have hereunto affixed our signatures this 23 rd day of July,
2015 at Echague, Isabela.

TRISTAN F. CALUYA BIVIANA IBANA-CALUYA

Affiant Affiant

MERLISTO LANO LUALHATY CALUYA-LANO

Affiant Affiant

SUBSCRIBED AND SWORN to before me this 23rd day of July, 2015 at Echague, Isabela. I
hereby certify that I personally examined the affiants and I am satisfied that they have read and
understood the contents of their Position Paper and they attested that the same is a product of
their own free will. Affiants have individually exhibited to me their Identification Card bearing
their picture and signature as competent proof of their identity.

Doc No._____;
Page No.____;
Book No.____;
Series of 2015.

Copy furnished via registered mail:

ATTY. ABRAHAM B. SABLE

Counsel for the Plaintiff
#49 VMG Bldg., City Road,
Calao West, Santiago City,
Isabela

EXPLANATION: A copy of the foregoing Position Paper was duly furnished Atty. Abraham B.
Sable in his given address via registered mail pursuant to Section 7, Rule 13 of the Rules of Court
due to distance, time and expense to effect personal service.

RODERICK M CRUZ