Civil Procedure

*Nature of action of partition.

G.R. No. 75886 August 30, 1988
CONCEPCION
ROQUE,
petitioner,vs.HON.
INTERMEDIATE
APPELLATE COURT, ERNESTO ROQUE, FILOMENA OSMUNDO,
CECILIA ROQUE, MARCELA ROQUE, JOSE ROQUE and RUBEN
ROQUE, respondents.
The subject of the present Petition for Review is the 31 July 1986 Decision
of the former Intermediate Appellate Court in AC-G.R. CV No. 02248
(entitled, "Concepcion Roque, plaintiff-appellee, vs. Ernesto Roque,
Filomena Osmunda Cecilia Roque, Marcela Roque, Jose Roque and Ruben
Roque, defendants-appellants") which reversed and set aside on appeal
the decision of the Regional Trial Court of Malolos, Branch 9.
The controversy here involves a 312 square meter parcel of land situated
in San Juan, Malolos, Bulacan and designated as Lot No. 1549 of the
Cadastral Survey of Malolos. The property was registered originally in the
name of Januario Avendao, a bachelor who died intestate and without
issue on 22 October 1945.
On 21 September 1959, the intestate heirs of Januario Avendafio executed
a document entitled "Paghahati at Pagtagabuyan ng Mana sa Labas ng
Hukuman." 1 Through this instrument, extrajudicial partition of Lot No.
1549 was effected among the intestate heirs as follows:
a. One-fourth (1/4) undivided portion to Illuminada Avendao.
b. One-fourth (1/4) undivided portion to Gregorio Avendafio and Miguel
Avendao.
c. One-fourth (1/4) undivided portion to Bernardino, Bienvenido, Numeriano
and Rufina, all surnamed Avendao.
d. One-fourth (1/4) undivided portion to respondent Emesto Roque and
Victor Roque.
On 28 September 1959, co-owners Illuminada, Gregorio, Miguel,
Bernardino, Bienvenido, Numeriano and Rufina, all surnamed Avendao, in
consideration of the aggregate amount of P500.00, transferred their
collective and undivided threefourths (3/4) share in Lot No. 1549 to
respondent Ernesto Roque and Victor Roque, thereby vesting in the latter
full and complete ownership of the property. The transactions were
embodied in two (2) separate deeds of sale both entitled "Kasulatan ng
Bilihang Patuluyan" 3 and both duly notarized. Subsequently, in an

Attorney Charles B. Escolin

unnotarized "Bilihan Lubos at Patuluyan" 4 dated 27 November 1961,
Emesto and Victor Roque purportedly sold a three-fourths (3/4) undivided
portion of Lot No. 1549 to their half-sister, petitioner Concepcion Roque, for
the same amount. The property, however, remained registered in the
name of the decedent, Januario Avendao.
Upon the instance of petitioner Concepcion Roque and allegedly of
respondent Ernesto Roque, Lot No. 1549 was surveyed on 20 September
1975. Consequent thereto, a Subdivision Plan 5 was drawn up by the
Geodetic Engineer Identifying and delineating a one-fourth (1/4) portion
(78 square meters) of the property as belonging to respondent Ernesto
Roque and Victor Roque (who had died on 14 April 1962), upon the one
hand, and a three-fourths (3/4) portion (234 square meters) of the same
property as belonging to petitioner Concepion Roque, upon the other hand.
Petitioner claimed that preparation of the Subdivision Plan, which was
approved on 3 November 1975 by the Land Registration Commission was a
preliminary step leading eventually to partition of Lot No. 1549, partition
allegedly having been previously agreed upon inter se by the co-owners.
Respondents Ernesto Roque and the legal heirs of Victor Roque, however,
refused to acknowledge petitioner's claim of ownership of any portion of
Lot No. 1549 and rejected the plan to divide the land.
Attempts at amicable settlement having fallen through, petitioner
Concepcion Roque, on 6 December 1977, filed a Complaint for "Partition
with Specific Performance" 6 (docketed as Civil Case No. 5236-M) with
Branch 2 of the then Court of First Instance of Malolos against respondents
Emesto Roque and the heirs of Victor Roque. In her complaint, petitioner
(plaintiff below) claimed legal ownership of an undivided threefourths (3/4)
portion of Lot No. 1549, by virtue of the 27 November 1961 "Bilihan Lubos
at Patuluyan" executed in her favor by Emesto Roque and Victor Roque. In
support of this claim, petitioner also presented an undated and
unnotarized "Kasulatang Pagkilala sa Bilihan Patuluyan ng Bahagui at
Pagmamana sa Labas ng Hukuman at Paghahati-hati at Abuyan ng
Bahagui" 7 said to have been signed by the respondents in
acknowledgment of the existence and validity of the Bilihan in favor of
petitioner. Finally, petitioner alleged that, as a coowner of Lot No. 1549,
she had a right to seek partition of the property, that she could not be
compelled to remain in the coownership of the same.
In an Answer with Compulsory Counterclaim 8 filed on 28 December 1977,
respondents (defendants below) impugned the genuineness and due
execution of the "Bilihan Lubos at Patuluyan" dated 27 November 1961 on
the ground "that the signatures appearing thereon are not the authentic

Civil Procedure
*Nature of action of partition.
signatures of the supposed signatories ...." It was also alleged that
petitioner Concepcion Roque, far from being a co-owner of Lot No. 1549,
"occupied a portion of the lot in question by mere tolerance of the
[defendants]." Respondents also refused to honor the unnotarized
Kasulatan and, additionally, denied having had any participation in the
preparation of the Subchvision Plan.

III

On 27 June 1983, the trial court (now Branch 9, Regional Trial Court of
Malolos) rendered a Decision, 9 the dispositive portion of which read:

IV

WHEREFORE, judgment is hereby rendered, in favor of the plaintiff and

against the defendants;

The lower court erred in giving credence to the testimony of the plaintiffappellee Concepcion Roque despite [its] gross inconsistencies. 10

1. Ordering the heirs of the late Victor Roque namely Filomena Osmunda
his spouse, his children, Cecilia Roque, Marcela Roque, Jose Roque and
Ruben Roque and their uncle and co-defendant Emesto Roque, to execute
a deed of confirmation of the sale made by Emesto and Victor Roque in
favor of plaintiff Concepcion Roque, entitled "Bilihan Lubos at Patuluyan,"
executed on November 27, 1961, Exh. E, over the 3/4 portion of the
subject property;

Acting on the appeal (docketed as A.C.-G.R. CV No. 02248), the

Intermediate Appellate Court, in a Decision 11 dated 31 July 1986,
reversed the judgment of the trial court and dismissed both the petitioner's
complaint and the respondents' appeal. A Motion for Reconsideration of
petitioner Concepcion Roque was denied.

2. Ordering the partition of the parcel of land described in par. 3 of tie

complaint covered by Original Certificate of Title No. 1442 Bulacan issued
in the name of Januario Avendafio, in the proportion of 3/4 to pertain to
Concepcion Roque, and 1/4 to pertain to Emesto Roque and his codefendants, his sister-in-law, nephews and nieces, in accordance with the
approved subdivision plan (LRC Psd-230726).
3. Ordering defendants,jointly and severally, to pay to plaintiff the sum of
P2,000.00 as and for attomey's fees and the costs of suit.
SO ORDERED.
The respondents appealed from this decision alleging the following errors:
I
The lower court erred when it decided and ordered defendantsappellants to
execute a confirmation of the "Bilihan Lubos at Patuluyan," Exh. "E."
II
The lower court erred when it decided and ordered the
defendantsappellant,s to deliver unto the plaintiff [a] 3/4 share of the land
in question.

Attorney Charles B. Escolin

The lower court erred in deciding this case in favor of the plaintiff-appellee,
based on an unnotarized and forged signature of defendantappellant
Ernesto Roque.

The present Petition for Review was filed with this Court on 18 September
1986. In a resolution dated 27 July 1987, we gave due course to the
Petition and required the parties to submit their respective Memoranda.
1. On the matter of dismissal of petitioner's complaint, the Intermediate
Appellate Court stated in its decision:
While the action filed by the plaintiff is for partition, the defendantz, after
denying plaintiff's assertion of co-ownership, asserted that they are the
exclusive and sole owners of the 314 portion of the parcel of land claimed
by the plaintiff.
Upon the issue thusjoined by the pleadings, it is obvious that the case has
become one ofownership of the disputed portion of the subject lot.
It is well settled that an action for partition will not prosper as such from
the moment an alleged co-owner asserts an adverse title. The action that
may be brought by an aggrieved co-owner is accion reivindicatoria or
action for recovery of title and possession (Jardin vs. Hallasgo, 11 7 SCRA
532, 536, 537; Paner vs. Gaspar, 3 CA Rep. 155, 158). (Emphasis supplied)
Viewed in the light of the facts of the present case, the Intermediate
Appellate Court's decision appears to imply that from the moment
respondents (defendants below) alleged absolute and exclusive ownership
of the whole of Lot No. 1549 in their Answer, the trial court should have
immediately ordered the dismissal of the action for partition and petitioner

Civil Procedure
*Nature of action of partition.
(plaintiff below), if she so desired, should have refiled the case but this
time as an accion reinvindicatoria. Taking this analysis a step further
should the reivindicatory action prosper i.e., a co-ownership relation is
found to have existed between the parties a second action for partition
would still have to be instituted in order to effect division of the property
among the co-owners.
We do not agree with the above view. An action for partition-which is
typically brought by a person claiming to be co-owner of a specified
property against a defendant or defendants whom the plaintiff recognizes
to be co-owners may be seen to present simultaneously two principal
issues. First, there is the issue of whether the plaintiff is indeed a co-owner
of the property sought to be partitioned. Second, assuming that the
plaintiff successfully hurdles the first issue, there is the secondary issue of
how the property is to be divided between plaintiff and defendant(s) i.e.,
what portion should go to which co-owner.
Should the trial court find that the defendants do not dispute the status of
the plaintiff as co-owner, the court can forthwith proceed to the actual
partitioning of the property involved. In case the defendants assert in their
Answer exclusive title in themselves adversely to the plaintiff, the court
should not dismiss the plaintiffs action for partition but, on the contrary
and in the exercise of its general jurisdiction, resolve the question of
whether the plaintiff is co-owner or not. Should the trial court find that the
plaintiff was unable to sustain his claimed status as co-owner, or that the
defendants are or have become the sole and exclusive owners of the
property involved, the court will necessarily have to dismiss the action for
partition. This result would be reached, not because the wrong action was
commenced by the plaintiff, but rather because the plaintiff having been
unable to show co-ownership rights in himself, no basis exists for requiring
the defendants to submit to partition the property at stake. If, upon the
other hand, the court after trial should find the eidstence of co-ownership
among the parties litigant, the court may and should order the partition of
the property in the same action. Judgment for one or the other party being
on the merits, the losing party (respondents in this case) may then appeal
the same. In either case, however, it is quite unnecessary to require the
plaintiff to file another action, separate and independent from that for
partition originally instituted. Functionally, an action for partition may be
seen to be at once an action for declaration of coownership and for
segregation and conveyance of a determinate portion of the property
involved. This is the import of our jurisprudence on the matter. 12 and is
sustained by the public policy which abhors multiplicity of actions.

Attorney Charles B. Escolin

The question of prescription also needs to be addressed in this connection.
It is sometimes said that "the action for partition of the thing owned in
common (actio communi dividendo or actio familiae erciscundae) does not
prescribe." 13 This statement bears some refinement. In the words of
Article 494 of the Civil Code, "each co-owner may demand at any time the
partition of the thing owned in common, insofar as his share is concemed."
No matter how long the co-ownership has lasted, a co-owner can always
opt out of the co-ownership, and provided the defendant co-owners or coheirs have theretofore expressly or impliedly recognized the co-ownership,
they cannot set up as a defense the prescription of the action for partition.
But if the defendants show that they had previously asserted title in
themselves adversely to the plaintiff and for the requisite period of time,
the plaintiffs right to require recognition of his status as a co-owner will
have been lost by prescription and the court cannot issue an order
requiring partition. This is precisely what happened in Jardin v. Hallasgo,
117 SCRA 532 (1982), which the respondent appellate court cited to
support its position quoted above.
The case of Jardin involved, among others, two (2) parcels of land which
were inherited in 1920 by the brothers Catalino jardin and Galo Jardin
together with their half-brother, Sixto Hallasgo. The three (3) held these
lands in co-ownership until Sixto later (the date was not specified)
repudiated the coownership and occupied and possessed both parcels of
land, claiming the same exclusively as his own. Sometime in 1973, the
heirs of Catalino and Galo instituted an action for partition of the two (2)
properties against Sixto's heirs, who had refused to surrender any portion
of the same to the former. The trial court, assuming that prescription had
started to run in that case even before the Civil Code took effect, held that
the action for partition filed by the heirs of Catalino and Galo had already
prescribed. On appeal, this Court affirmed the trial court on this point in
the following terms:
Article 494 of the Civil Code provides that "no co-owner shall be obliged to
remain in the co- ownership" and that "each co-owner may demand at any
time the partition of the thing owned in common, insofar as his share is
concerned." It also provides that 'no prescription shall run in favor of a coowner or co-heir against his co-owners or co-heirs so long as he expressly
or impliedly recognizes the co-ownership.
While the action for the partition of the thing owned in common (actio
communi dividendo or actio familiae erciscundae) does not prescribe, the
co-ownership does not last forever since it may be repudiated by a coowner [i.e., Sixto]. In such a case, the action for partition does not lie. What

Civil Procedure
*Nature of action of partition.
may be brought by the aggrieved co-owner [i.e., the heirs of Catalino and
Galo] is an accion reivindicatoria or action for recovery of title and
possession. That action may be barred by prescription.
If the co-heir or co-owner having possession of the hereditary or
community property, holds the same in his own name, that is, under claim
of exclusive ownership, he may acquire the property by prescription if his
possession meets all the other requirements of the law, and after the
expiration of the prescriptive period, his co-heir or co-owner may lose their
right to demand partition, and their action may then be held to have
prescribed (De los Santos vs. Santa Teresa, 44 Phil. 811).
In the light of the foregoing discussion, it will be seen that the underscored
portion of the Court's opinion in Jardin is actually obiter. For there, the
Court simply held the action for partition by the heirs of Catalino and Galo
had prescribed and did not require such heirs to start a new action (which
would have been quite pointless); on the other hand, the Court remanded
the case to the lower court for further proceedings in respect of the
recovery of a 350 square meter lot which the evidence showed was owned
by the plaintiffs but wrongfully included by Sixto in the cadastral survey of
his share of the adjoining lot.
In Jardin, the claim of co-ownership asserted by the heirs of Catalino and
Galo was effectively refuted by the heirs of Sixto, who not only claimed for
themselves absolute and exclusive ownership of the disputed properties
but were also in actual and adverse possesion thereof for a substantial
length of time. The Court found, further, that the action for partition
initially available to the heirs of Catalino and Galo had, as a result of the
preceding circumstance, already prescribed.

An entirely different situation, however, obtains in the case at bar. First of

all, petitioner Concepcion Roque-the co-owner seeking partition has
been and is presently in open and continuous possession of a three-fourths
(3/4) portion of the property owned in common. The Court notes in this
respect the finding of the trial court that petitioner, following execution of
the "Bilihan Lubos at Pattlluyan" on 27 November 1961, had been in
"continuous occupancy of the 3/4 portion of the lot ... up to the present,
and whereon plaintifrs house and that of her son are erected. " 14
Respondents do not dispute this finding of fact, although they would claim
that petitioner's possession is merely tolerated by them. Second, prior to
filing in 1977 of the Complaint in Civil Case No. 5236-M, neither of the
parties involved had asserted or manifested a claim of absolute and

Attorney Charles B. Escolin

exclusive ownership over the whole of Lot No. 1549 adverse to that of any
of the other co-owners: in other words, co-ownership of the property had
continued to be recognized by all the owners. Consequently, the action for
partition could not have and, as a matter of fact, had not yet prescribed at
the time of institution by Concepcion of the action below.
2. Coming now to the matter regarding dismissal of the
respondents'appeal, the Intermediate Appellate Court held that inasmuch
as the attack on the validity of the "Bilihan Lubos at Patuluyan" was
predicated on fraud and no action for annulment of the document had
been brought by respondents within the four (4) year prescriptive period
provided under Article 1391 of the Civil Code, such action had already
prescribed.
We find it unnecessary to deal here with the issue of prescription discussed
by the respondent court in its assailed decision. The facts on record clearly
show that petitioner Concepcion Roque had been in actual, open and
continuous possession of a three-fourths (3/4) portion of Lot No. 1549 ever
since execution of the "Bilihan Lubos at Patuluyan" in November of 1961.
The Court notes that it was only in their Answer with Compulsory
Counterclaim filed with the trial court in December of 1977 more than
sixteen (16) years later that respondents first questioned the
genuineness and authenticity of the "Bilihan Lubos at Patuluyan." Not once
during those sixteen (16) years did respondents contest petitioner's
occupation of a three-fourths (3/4) portion of Lot No. 1549. Furthermore, if
indeed it is true that respondents, as they claim, are the absolute owners
of the whole of Lot No. 1549, it is most unusual that respondents would
have allowed or tolerated such prolonged occupation by petitioner of a
major portion (3/4) of the land while they, upon the other hand, contented
themselves with occupation of only a fourth thereof. This latter
circumstance, coupled with the passage of a very substantial length of
time during which petitioner all the while remained undisturbed and
uninterrupted in her occupation and possession, places respondents here
in laches: respondents may no longer dispute the existence of the coownership between petitioner and themselves nor the validity of
petitioner's claim of a threefourths (3/4) interest in Lot No. 1549, as they
are deemed, by their unreasonably long inaction, to have acquiesced in the
coow,aership. 15 In this respect, we affirm the decision of the respondent
appellate court presently under review.
WHEREFORE, the Decision of the Intermediate Appellate Court dated 31
July 1986 in A.C.-G.R. CV No. 02248 is SET ASIDE with respect to that
portion which orders the dismissal of the Complaint in Civil Case No. 5236-

Civil Procedure
*Nature of action of partition.
M, but is AFFIRMED with respect to that portion which orders the dismissal
of the respondents'appeal in A.C.-G.R. CV No. 02248. The Decision of
Branch 9 of the Regional Trial Court of Malolos dated 27 June 1983 in Civil
Case No. 5236-M is hereby REINSTATED. No pronouncement as to costs.
SO ORDERED.

Attorney Charles B. Escolin

CONCEPCION V. VDA. DE DAFFON, petitioner, vs. THE HONORABLE
COURT OF APPEALS, LOURDES OSMEA VDA. DE DAFFON, AILEEN
DAFFON, JOSELITO DAFFON, JR., ANA VANESA DAFFON, LEILA
DAFFON and SUZETTE DAFFON, respondents.
Petitioner Concepcion Villamor was married to the late Amado Daffon, with
whom she begot one son, Joselito Daffon. Joselito married Lourdes Osmea,
and they bore six children, namely, Aileen, Joselito Jr., Ana Vanesa, Leila,
Julius and Suzette.
Amado passed away on January 21, 1982. His son, Joselito, died on October
25, 1990.
On January 21, 1994, respondents Lourdes Osmea Vda. De Daffon,
together with her six minor children, instituted an action for partition
against petitioner Concepcion Villamor Vda. de Daffon, which case was
docketed as Civil Case No. DNA-281 of the Regional Trial Court of Danao
City, Branch 25.[1] Respondents alleged that Amado left several real and
personal properties which formed part of his conjugal partnership with
petitioner. Joselito being a forced heir of Amado was entitled to at least one
half of Amados estate, consisting of his share in the said conjugal
properties. However, the said properties were never partitioned between
petitioner and Joselito. After Joselitos death, petitioners behavior towards
respondents, her daughter-in-law and grandchildren, changed. She claimed
absolute ownership over all the properties and deprived them of the fruits
thereof. Thus, respondents prayed that the conjugal properties of Amado
Daffon and petitioner be partitioned and that the one-half share of Amado
be further partitioned between petitioner, on one hand, and the
respondents as heirs of Joselito Daffon, on the other hand.

[G.R. No. 129017. August 20, 2002]

Petitioner filed a Motion to Dismiss on the grounds of (1) lack of jurisdiction

over the subject matter of the case; (2) failure of the complaint to state a
cause of action; and (3) waiver, abandonment and extinguishment of the
obligation.[2] She argued that the trial court cannot take cognizance of the
action for partition considering her claim of absolute ownership over the
properties; and that respondents themselves admitted that petitioner has
repudiated the co-ownership. Anent the third ground, petitioner alleged
that Joselito Daffon filed a complaint against Milagros Marin, who was
likewise married to Amado Daffon, for recovery of a parcel of land in
Mandaluyong.[3] In said complaint, respondent Lourdes Osmea Vda. de
Daffon allegedly admitted that the land sought was the only property of
the late Amado Daffon.

Civil Procedure
*Nature of action of partition.
In an Order dated July 22, 1994, the trial court denied the Motion to
Dismiss.[4] Petitioner filed a motion for reconsideration which was also
denied on September 23, 1994.[5]
On October 25, 1994, petitioner filed a petition for certiorari with the Court
of Appeals, docketed as CA-G.R. SP No. 35536. On November 14, 1996, the
Court of Appeals rendered the assailed decision denying due course and
dismissing the petition for certiorari.[6] Petitioners motion for
reconsideration was denied in the Resolution dated April 21, 1997.[7]
The case is now before us on petition for review, based on the following
issues:
I
THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT
PRIVATE RESPONDENTS NEED NOT BE ACKNOWLEDGED AS HEIRS OF THE
DECEASED AMADO DAFFON.
II
THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT
IT IS NOT NECESSARY THAT PRIVATE RESPONDENTS BE THE REGISTERED
OWNERS OF THE PROPERTIES CLAIMED IN THE ACTION FOR PARTITION.
III
THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT
THE TRIAL COURT IS NOT REQUIRED TO TAKE JUDICIAL NOTICE OF
ANOTHER CASE PENDING IN ANOTHER COURT.
IV
THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN NOT HOLDING
THAT THE TRIAL COURTS DENIAL OF PETITIONERS MOTION TO DISMISS THE
COMPLAINT BASED ON FAILURE TO STATE A CAUSE OF ACTION IS
REVIEWABLE BY THE SPECIAL CIVIL ACTION OF CERTIORARI.[8]
There is no merit in the petition.
It should be stressed that in the determination of whether a complaint fails
to state a cause of action, only the statements in the complaint may be
properly considered.[9] Moreover, a defendant who moves to dismiss the
complaint on the ground of lack of cause of action hypothetically admits all
the averments thereof. The test of sufficiency of the facts found in a

Attorney Charles B. Escolin

complaint as constituting a cause of action is whether or not admitting the
facts alleged the court can render a valid judgment upon the same in
accordance with the prayer thereof. The hypothetical admission extends to
the relevant and material facts well pleaded in the complaint and
inferences fairly deducible therefrom. Hence, if the allegations in the
complaint furnish sufficient basis by which the complaint can be
maintained, the same should not be dismissed regardless of the defense
that may be assessed by the defendants.[10]
In the case at bar, the complaint sufficiently alleged that defendant (i.e.,
petitioner herein) was married to Amado Quiros Daffon and that they begot
an only son in Joselito Daffon.[11] The complaint further alleged that
Joselito Daffon later got married to herein plaintiff Lourdes Osmea and
before the former died on October 25, 1990 he sired the six (6) children
who are now plaintiffs with their mother.[12] This, to our mind, was
sufficient allegation that Joselito Daffon was a legitimate son of the
spouses Amado and Concepcion Daffon; and that plaintiffs (i.e.,
respondents herein) were likewise legitimate heirs of Joselito Daffon.
Admitting the truth of these averments, there was, therefore, no need to
inquire whether respondent minor children were duly acknowledged by the
deceased Amado Daffon. To be sure, the illegitimacy of the said children
and the lack of acknowledgment are matters which petitioner may raise as
a defense in her answer and threshed out by the court during a full-blown
trial.
In the same vein, there is no need for the complaint to specifically allege
respondents claim of co-ownership of the properties. The complaint needs
only to allege the ultimate facts on which the plaintiffs rely for their claim.
[13]
The rules of procedure require that the complaint must make a concise
statement of the ultimate facts or the essential facts constituting the
plaintiffs cause of action. A fact is essential if it cannot be stricken out
without leaving the statement of the cause of action inadequate. A
complaint states a cause of action only when it has its three indispensable
elements, namely: (1) a right in favor of the plaintiff by whatever means
and under whatever law it arises or is created; (2) an obligation on the part
of the named defendant to respect or not to violate such right; and (3) an
act or omission on the part of such defendant violative of the right of
plaintiff or constituting a breach of the obligation of defendant to the
plaintiff for which the latter may maintain an action for recovery of
damages.[14]

Civil Procedure
*Nature of action of partition.
The allegations contained therein are sufficient to establish respondents
right to the estate of Amado Daffon. By stating their relationship to the
deceased, they established their line of succession as the basis for their
claim. Their rights to succeed as heirs were transmitted from the moment
of death of the decedent.[15]
Contrary to petitioners contention, the fact that she repudiated the coownership between her and respondents did not deprive the trial court of
jurisdiction to take cognizance of the action for partition. In a complaint for
partition, the plaintiff seeks, first, a declaration that he is a co-owner of the
subject properties; and second, the conveyance of his lawful shares.[16] As
the Court of Appeals correctly held, an action for partition is at once an
action for declaration of co-ownership and for segregation and conveyance
of a determinate portion of the properties involved. If the defendant
asserts exclusive title over the property, the action for partition should not
be dismissed. Rather, the court should resolve the case and if the plaintiff
is unable to sustain his claimed status as a co-owner, the court should
dismiss the action, not because the wrong remedy was availed of, but
because no basis exists for requiring the defendant to submit to partition.
If, on the other hand, the court after trial should find the existence of coownership among the parties, the court may and should order the partition
of the properties in the same action.[17]
An action for partition is comprised of two phases: first, an order for
partition which determines whether a co-ownership in fact exists, and
whether partition is proper; and, second, a decision confirming the sketch
or subdivision submitted by the parties or the commissioners appointed by
the court, as the case may be. The first phase of a partition and/or
accounting suit is taken up with the determination of whether or not a coownership in fact exists, (i.e., not otherwise legally proscribed) and may be
made by voluntary agreement of all the parties interested in the property.
This phase may end with a declaration that plaintiff is not entitled to have
a partition either because a co-ownership does not exist, or partition is
legally prohibited. It may end, upon the other hand, with an adjudgment
that a co-ownership does in truth exist, partition is proper in the premises
and an accounting of rents and profits received by the defendant from the
real estate in question is in order. In the latter case, the parties may, if they
are able to agree, make partition among themselves by proper instruments
of conveyance, and the court shall confirm the partition so agreed upon.
[18]
Petitioner insists that in her testimony given in Civil Case No. 56336,
respondent Lourdes Daffon admitted that the land in Mandaluyong was the

Attorney Charles B. Escolin

only property left by the deceased Amado Daffon. The pertinent portion of
her testimony runs this way:
Q And because of that incident being the surviving spouse of Joselito
Daffon, how did it affect you personally and also your husband at that time
when he was still alive?
A She (sic) felt sad and she (sic) suffered mental torture, mental anxiety
and numerous sleepless nights for that is the only property left to us by my
father-in-law and his son and his grandchildren.[19]
We do not agree with petitioners interpretation of the above phrase. The
foregoing statement, saying that the deceased only left the said
Mandaluyong property to his son Joselito, does not exclude the possibility
that Amado owned other land and personal belongings during his lifetime,
which he may not have left to his son. This does not deprive Joselito or his
successors-in-interest of the right to share in those other properties. As a
matter of fact, respondents complaint contains a long list of properties
allegedly owned by Amado Daffon.[20] Again, the resolution of whether or
not these belonged to Amado Daffon and formed part of his estate is a
matter best taken up during trial and after an evaluation of the evidence to
be presented by the contending parties.
Petitioner argues that the order which denied the Motion to Dismiss is an
interlocutory order which is not appealable. Hence, it may be the subject of
a special civil action for certiorari. However, for certiorari to lie, it must be
convincingly proved that the lower court committed grave abuse of
discretion, or an act too patent and gross as to amount to an evasion of a
positive duty, or a virtual refusal to perform the duty enjoined or act in
contemplation of law; or that the trial court exercised its power in an
arbitrary and despotic manner by reason of passion and personal hostility.
[21] In the case at bar, the trial court did not commit grave abuse of
discretion in denying petitioners Motion to Dismiss. Thus, the Court of
Appeals was correct in dismissing the petition for certiorari.
We are indeed distressed by the circumstances under which the instant
case reached this Court. Instead of filing an answer and meeting the issues
head-on, petitioner and her counsel chose to elevate the incident of the
denial of the Motion to Dismiss to the higher courts. In doing so, they
effectively delayed the resolution of the case and the adjudication of the
respective rights of the parties by the court below. What makes this case
more reprehensible is that petitioner abused the legal process to delay her
own grandchildrens expectancy to share in the estate left by their father
and grandfather. If there is any merit in her claim of absolute ownership

Civil Procedure
*Nature of action of partition.
over the contested properties, she could have just allowed the case to be
fully tried, during which she should have proved her case with competent
proof. While litigants may utilize all available means to defend themselves,
the legal strategies they employ should not amount to machinations which
frustrate and prejudice the rights of others. Moreover, frivolous appeals,
such as the one filed in this case, are not countenanced in this jurisdiction.

Attorney Charles B. Escolin

WHEREFORE, in view of the foregoing, the instant petition is DENIED. The
decision of the Court of Appeals in CA-G.R. SP No. 35536 is AFFIRMED.
SO ORDERED.