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[G.R. No. 151443.December 9, 2002]
BONIFACIO & FAUSTINA PARAY vs. CA, et al.
SECOND DIVISION
Gentlemen:
Quoted hereunder, for your information, is a resolution of this Court dated 0 9 DEC 2002.
G.R. No. 151443(Bonifacio Paray and Faustina Paray vs. Court of Appeals, Honorable Rumoldo R. Fernandez, then Acting Presiding Judge, Regional Trial Court, Branch 27, Lapu-Lapu City, Generosa vda. de Singson, Heirs of Alfredo Yagonia (Sergio, Josefa, Salestico, Patricia and Maurecio, all surnamed Yagonia), Cesario Yagonia, Arsenio Yagonia and Pedro Yagonia.)
Sometime in the late seventies private respondent Generosa vda. de Singson instituted an action for quieting of title against petitioner-spouses Bonifacio Paray and Faustina Paray and private respondents Sergio, Josefa, Salestico, Patricia, Maurecio, Cesario, Arsenio and Pedro all surnamed Yagonia. The contested property, denominated as Lot 515-D, lies in Lapu-Lapu City and is covered by Transfer Certificate of Title No. T-0275 in the name of the Heirs of Placido Yagonia.
On 26 February 1982 judgment was rendered declaring private respondent Generosa vda. de Singson owner of an undivided portion, roughly 518 square meters, of Lot 515-D. The trial court also gave private respondent Singson thirty (30) days from finality of the decision within which to redeem portions of Lot 515-D (Lot Nos. 515-D-1 and 515-D-3) which she had earlier mortgaged god in favor of petitioner-spouses. On 20 April 1998, alter finality of judgment, entry was made.
Years later, petitioner-spouses filed an action for confirmation of partition and/or partition against private respondents Singson and the Yagunias. Petitioners alleged that private respondent Singson failed to exercise her right of redemption over Lot Nos. 515-D-1 and 515-D-3; thus, they became co-owners of Lot 515-D. Petitioners prayed for partition of Lot 515-D and the issuance of corresponding certificates of title to each of the co-owners. On 15 July 1997 judgment was rendered ordering the partition of the disputed property among the co-owners. [1] cralaw Subsequently, a writ of execution was issued for enforcement and satisfaction of the aforesaid decision.
On 2 July 1999 petitioner-spouses moved for issuance of a special order of demolition against private respondents Singson and the Yagonias. Petitioners averred that private respondents continued to possess and live in the disputed property despite finality of the decision ordering its partition. The motion was denied. The trial court ratiocinated that in the absence of a plan of partition submitted by the parties for approval, the order of demolition could not be issued.
Petitioner-spouses went to the Court of Appeals on a petition for certiorari, prohibition and mandamus imputing grave abuse of discretion on the part of the trial court for denying the issuance of an order of demolition. The Court of Appeals dismissed the petition and held that an order denying a motion for demolition being a final order should have been attacked through a petition for review on certiorari and not through a special civil action for certiorari. [2] cralaw Their motion for reconsideration having been denied, petitioners came to US on a petition for review.
While the petition is denominated as a Petition for Review under Rule 45 of the Rules of Court, petitioners seek the "corrective and supervisory jurisdiction of the x x x Supreme Court x x x for the reason that the x x x Court of Appeals acted whimsically and capriciously, amounting to lack or want of jurisdiction and with grave abuse of discretion . . . ." Petitioners aver that "the function of certiorari is to keep an inferior court within the bounds of its jurisdiction; that of prohibition is to prevent it from usurping matters not within its power to hear and grant, and that of mandamus is to compel the performance, when refused, of a ministerial duty." In support of their petition, they insist that upon finality of the decision in the partition case, it becomes ministerial for the trial court to issue an order of demolition against occupants of the disputed property.
Petitioners fail to distinguish between a petition for review on certiorari under Rule 45 of the Rules of Court and an original petition for certiorari under Rule 65 of the same rules. Certiorari, as a mode of appeal, involves the review on the merits of a judgment, final order or award rendered by a lower court, while an original action fur certiorari concerns the issue of whether a lower court acted without or in excess of its jurisdiction or with grave abuse of discretion.
Nonetheless, even if we treat the petition as having been brought under Rule 45, still the petition must be denied for lack of merit. It is an inherent and peculiar feature of co-ownership that no individual co-owner can claim title to any definite portion of a thing owned in common until division thereof is effected. Prior thereto, all that the co-owner has is an ideal, abstract or proportionate share in the entire thing. Thus, in the absence of an instrument of partition allotting to an individual co-owner his specific portion in the property, it would be illusory and absurd for him to demand from a co-owner the demolition of any structure standing on the property belonging to the co-ownership. Consequently, the trial court correctly denied the issuance of an order of demolition in the absence of an order of partition wherein the metes and bounds of the portions allotted to each of the petitioners are properly delineated.
WHEREFORE , finding no reversible error committed by the Court of Appeals, the petition is DENIED.
����������� SO ORDERED.
Very truly yours,
(Sgd.) TOMASITA B. MAGAY-DRIS
Clerk of Court
Endnotes:
[1] cralaw Decision penned by Judge Teodoro K. Risos, RTC-Br. 27, Lapu-Lapu City; Rollo, pp. 31-34
[2] cralaw Resolution penned by Associate Justice Edgardo P. Cruz and concurred in by Associate Justices Ramon Mabutas, Jr. and Roberto A. Barrios, Fifth Division, Court of Appeals; id., p. 22.
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