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[ G.R. No. 137646. July 12, 1999]

SPS. ROBERTO & IMELDA DUMAYAS, et al. vs. SAN BUENA REALTY & DEV'T CORP.

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUL 12, 1999.

G.R. No. 137646 (Spouses Roberto and Imelda Dumayas, et al. vs. San Buena Realty & Development Corporation.)

The spouses Roberto and Imelda Dumayas are the defendants in an action for recovery of possession of lands, known as the Buenaville Commercial Center, which respondent San Buena Realty & Development Corporation had brought. It was alleged that, "through strategy and stealth" petitioners made a construction on a portion of respondent's lands as a result of which a wall built by respondent to separate its subdivision from petitioners' land was destroyed.

In their answer, petitioners denied the allegation. They claimed that the land on which they reside was bought by them under a conditional sale agreement from the Development Bank of the Philippines which still had title to the land; that when DBP bought the lot in December 1977, there was already a wall separating the lot from the property of respondent.

In its decision rendered on January 25, 1988, the RTC found that petitioners' construction had encroached on 45 square meters, more or less, of respondent's lot. Accordingly, it ordered petitioners to restore possession of the land in question to respondent and to pay to the latter the sum of P3,000.00 as compensatory damages, P5,000.00, as attorney's fees, and the costs. The trial court dismissed the intervention of the DBP, as well as petitioners' counterclaim, for lack of merit. The trial court's decision was affirmed by the Court of Appeals. Hence, this petition for review on certiorari.

Petitioners contend that they were denied due process when the Court of Appeals sustained the exclusion of Exhs. 14 (sketch plan) and 17 (report/certification of the Lan Registration Commission) which according to them show that the properties of petitioners and of respondent company overlap each other. they claim that, at the hearing on February 13, 1986, respondent's counsel stated that he would admit that the sketch plan (Exh. 14) is a faithful reproduction if petitioner spouses could produce a certification that the original was still existing in the office which prepared and verified the same and that such certification from the Land Registration Commission (Exh. 17) was eventually produced by them.

The petition has no merit. Even assuming that the sketch plan (Exh. 14) was erroneously excluded, the error is a harmless one. The overlapping of boundaries allegedly shown in said sketch plan supports respondent's claim that there was indeed an intrusion on its property.

In any case, respondent presented a relocation survey (Exh. H), drawn and prepared by Geodetic Engineer Carlos Cruz, verified as correct by Eleuterio Paz of the Bureau of Lands, and approved by Rodolfo Palomo, Regional Director of the Bureau of Lands which, as noted by the Court of Appeals,

. . . indicates the boundary (metes and bounds) between Gruar Subdivision where the spouses' lot is located as shown by a broken line (Exh. H-1). Visible on the plan occupied by the Buenaville Subdivision are short broken lines which are intrusions or encroachments into it. The first intrusion (Exh. 2) measures 3.75 meters; and the third intrusion (Exh. H-4) measures 4.39 meters. In other words, according to the findings of Engr. Carlos Cruz as depicted by the relocation survey made, the extent of the encroachment by the spouses Dumayas measures 45 square meters, more or less, in a 2.95, 2.8 x 16 meters measurement which actually consist of a two-storey residential house built by the spouses (Exh. H-2, supra). Part of the residential house and the demolished portion of Buena Realty's wall are indicated by visible lines in the relocation plan (Exhs. F & F-2).

The court a quo gives due credence to the testimony of Geodetic Engr. Carlos Cruz due to his extensive experience. Besides, Engr. Carlos Cruz showed to have followed the provisions of the Philippine Surveyor's Manual in conducting the relocation survey. He looked into the relevant record of the LRC regarding both subdivision as well as going over the Cadastral Map regarding the properties in question before the actual relocation was undertaken. After details needed in the technical descriptions of the properties to be relocated were through, he started the fieldwork. In fact, notices of the intended relocation survey were sent to adjoining lot owners pursuant to Sections 333 to 345 of the Surveyor's manual (Exh. G).

Petitioners contend that, even assuming that they have indeed encroached on respondent's property, they should be considered as builders in good faith. However, as both the trial and appellate courts fund, petitioners demolished a portion of respondent's wall to give way to the construction of an extension to their house. This is a finding of fact which is binding upon the Court (Uruca v. Court of Appeals, 278 SCRA 701 [1997]) and negates petitioner's claim of good faith.

For the foregoing reasons, the Court RESOLVES to DENY the petition for review on certiorari for lack of showing that the Court of Appeals committed any reversible error.

Very truly yours,

(Sgd.) TOMASITA MAGAY-DRIS

Clerk of Court

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