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FIRST DIVISION

G.R. No. 84046 July 30, 1990

GAUDENCIO ORDO�EZ and GENEROSA ORDO�EZ, Petitioners, vs. THE HON. COURT OF APPEALS & MONICO ORDO�EZ, Respondent.

GRI�O-AQUINO, J.:

This is a petition to review the decision of the Court of Appeals in CA-G.R. No. 07906 entitled, "Monico Ordo�ez vs. Gaudencio Ordo�ez and Generosa Ordo�ez," which affirmed the decision of the Regional Trial Court of Imus, Cavite, Branch XXI in Civil Case No. 025-83 of the same title.chanroblesvirtualawlibrarychanrobles virtual law library

Petitioner Gaudencio Ordo�ez and private respondent Monico Ordo�ez are full blood brothers. This case involves two (2) parcels of unregistered land which Monico inherited from his parents' estate: (1) the "looban" which is a residential lot where the ancestral house stands in which Monico lives, and (2) the "tubigan," a riceland with an area of 55,000 square meters planted to palay in Bo. Todlong, Kawit, Cavite.chanroblesvirtualawlibrarychanrobles virtual law library

On April 16, 1940, private respondent sold the "tubigan" to Gaudencio for P150 and in payment of his prior indebtedness to said petitioner of P500. The sale is evidenced by a duly notarized Deed of Absolute Sale.chanroblesvirtualawlibrarychanrobles virtual law library

Private respondent testified that he verbally mortgaged the "looban" to Pedro Encarnacion as security for a loan of P300 with the agreement that the creditor would receive 50% of the harvest and pay the real estate taxes. Upon private respondent's request, Gaudencio paid P400 to Encarnacion in settlement of the private respondent's debt, and the said petitioner stepped into the shoes of the former creditor, Pedro Encarnacion. Petitioner Gaudencio Ordo�ez allowed his grandson, Pablito Bernardo, and his wife to build a house on the property.chanroblesvirtualawlibrarychanrobles virtual law library

On July 8, 1983, the private respondent filed a complaint (1) to quiet his title over both parcels of land (the "tubigan" and "looban") against his older brother, herein petitioner Gaudencio, and (2) to eject the Bernardo spouses from the "looban."chanrobles virtual law library

On June 17, 1985, the trial court rendered judgment, the dispositive portion of which reads as follows:

WHEREFORE, judgment is hereby rendered:chanrobles virtual law library

1. Declaring that the looban as described in the complaint belongs exclusively in ownership to plaintiff Monico Ordo�ez;chanrobles virtual law library

2. Declaring that the tubigan as described in the complaint belongs exclusively in ownership to Gaudencio Ordo�ez;chanrobles virtual law library

3. Dismissing claim for the ejectment of spouses Pablito and Bernardita Bernardo from the looban;chanrobles virtual law library

4. Dismissing all the other claims of the parties for lack of merit. (p. 43, Rollo.)

In a decision dated March 9, 1988, the Court of Appeals affirmed it, hence, this petition for review alleging that the Court of Appeals erred:

1. in holding that the "looban" is in the possession of the private respondent;chanrobles virtual law library

2. in not holding that the petitioner acquired it by acquisitive prescription;chanrobles virtual law library

3. in not holding that the private respondent's cause of action is barred by prescription or by laches; andchanrobles virtual law library

4. in not holding that the non-production of the document between the private respondent and the late Pedro Encarnacion, to prove the nature of the transaction between them gives rise to the presumption that it will be adverse to the private respondent if produced.

These are factual issues. The Court of Appeals and the lower court correctly held that the receipts for realty taxes paid by Encarnacion and the petitioner, Gaudencio Ordo�ez, on the "looban" are not evidence of title (Ramos vs. Court of Appeals, 112 SCRA 542). At best, they were indicia of possession. (Evangelista vs. Tabayuyong, 7 Phil. 607; Casimiro vs. Fernandez, 9 Phil. 562; Elumbaring vs. Elumbaring, 12 Phil. 384.) But as against the admitted fact that private respondent was in actual occupancy of the "looban" as he was the one living in the ancestral home, the tax receipts of the petitioner Gaudencio may not prevail as proof of his alleged "adverse" possession of the property that could ripen to ownership by acquisitive prescription.chanroblesvirtualawlibrarychanrobles virtual law library

The lower court's finding, that Gaudencio's possession was neither adverse nor continuous, is supported by the fact that he admittedly had never informed private respondent, nor any of his brothers and other relatives, that he had purchased the "looban" from Pedro Encarnacion. Their eldest brother, Victorio Ordo�ez, the boundary owner of the "looban" on the East, and a nephew, Florencio Ordo�ez, who also owns a piece of land adjacent to the "looban," both testified against Gaudencio and in favor of the private respondent.chanroblesvirtualawlibrarychanrobles virtual law library

Possession, to constitute the foundation of a prescriptive right, must be possession under a claim of title or it must be adverse (Cuayong vs. Benedicto, 37 Phil. 783). Furthermore, acts of a possessory character performed by one who holds the property by mere tolerance of the owner are clearly not in the concept of an owner, and such possessory acts, no matter how long continued, do not start the period of prescription running.chanroblesvirtualawlibrarychanrobles virtual law library

The private respondent's action to quiet title is imprescriptible. (Sapto vs. Fabiana, 103 Phil. 683; Gallar vs. Husain, 20 SCRA 186.)chanrobles virtual law library

It having been established that Monico inherited the "looban" from his parents, the burden of proving that he sold it to Encarnacion, fell on the shoulders of Gaudencio as the supposed transferee of Encarnacion. That burden of proof was not discharged by him.chanroblesvirtualawlibrarychanrobles virtual law library

WHEREFORE, finding no reversible error in the decision of the Court of Appeals, the petition for review is denied, with costs against the petitioners.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED.