Sole issue in forcible entry

SPOUSES ROGELIO F. LOPEZ            G.R. No. 184225

AND TEOTIMA G. LOPEZ,

                             Petitioners,                     Present:

                              

                                                            Santiago, 

          - versus -                                             Nazario

 Velasco, Jr.,

 Nachura,

 Peralta, .

SPOUSES SAMUEL R. ESPINOSA

AND ANGELITA S. ESPINOSA,            Promulgated:       

                             Respondents.                          

                                                                      Sept. 4, 2009

x ----------------------------------------------------------------------- x

DECISION

YNARES-SANTIAGO, J.:

X x x.

In Dy v. Mandy Commodities Co., Inc.,[1] the Court held that there is forcible entry or desahucio when one is deprived of physical possession of land or building by means of force, intimidation, threat, strategy or stealth.  The basic inquiry centers on who has the prior possession de facto.  The plaintiff must prove that he was in prior possession and that he was deprived thereof.

In the instant case, respondents’ house was constructed in 1983 and they had prior physical possession until they were deprived thereof by petitioners.  To substantiate their claims, respondents submitted the affidavit, dated September 20, 2002,[2] of Carlos C. Menil and Lolito S. Bito, who witnessed the demolition of respondents’ house during the latter’s absence.  Mr. Menil and Mr. Bito attested that they saw petitioner Rogelio personally supervising the demolition of respondents’ house, and that he erected a concrete fence enclosing the area where the house formerly stood.   Petitioners failed to refute the foregoing allegations except with bare denials.

While petitioners hold title to the subject property where the house was located, the sole issue in forcible entry cases is who had prior possession de facto of the disputed property.[3]  In Dy, the Court held that these are summary proceedings intended to provide an expeditious means of protecting actual possession or right of possession of property.  Title is not involved; that is why it is a special civil action with a special procedure.[4] 

The Court of Appeals correctly held that respondents did not abandon their house.  Abandonment requires (a) a clear and absolute intention to renounce a right or claim or to desert a right or property; and (b) an external act by which that intention is expressed or carried into effect.  The intention to abandon implies a departure, with the avowed intent of never returning, resuming or claiming the right and the interest that have been abandoned.[5]  There is none in this case.

The disconnection of water and electric supply and the fact that respondents left the house when respondent Samuel was assigned to Surigao del Norte in 1999, do not constitute abandonment.  As correctly found by the Court of Appeals, respondents left valuables inside the house and had the same padlocked, which acts constitute assertion and protection of their right over the subject house and negate renunciation and intention to lose the same.[6]  

It bears stressing that the instant case was preceded by the filing of actions for recovery of possession and malicious mischief before the Office of the Punong Barangay.  Likewise, upon discovery of petitioners’ acts of intrusion, respondents immediately filed a complaint for forcible entry and damages before the Municipal Trial Court in Cities.  The Certification to File Action dated August 26, 2002 shows that no settlement or conciliation was reached.[7]  It is clear from the foregoing that respondents have not been remiss in asserting their rights and that petitioners’ claims over the subject property have not gone unchallenged. 

The Court affirms the award of Php85,200.00 representing the value of improvements and attorney’s fees.  The issue on the propriety of the award was raised for the first time on motion for reconsideration before the Court of Appeals.  Well-settled is the rule that issues not raised below cannot be raised for the first time on appeal.[8]

WHEREFORE, based on the foregoing, the petition is DENIED.  The March 24, 2008 Decision of the Court of Appeals in CA-G.R. SP No. 00113-MIN finding petitioners liable for forcible entry is AFFIRMED.

SO ORDERED.

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[1] G.R. No. 171842, July 22, 2009.

[2] Rollo, p. 75.

[3] Perez v. Falcatan, G.R. No. 139536, September 26, 2005, 471 SCRA 21, 31.

[4] Supra note 19.

[5] Dela Cruz v. Quiazon, G.R. No. 171961, November 28, 2008.

[6] Rollo, pp. 16-17.

[7] Id. at p. 76.

[8] Hermogenes v. Osco, G.R. No. 141505, August 18, 2005, 467 SCRA 301, 310.