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[ G.R. No. 139079. September 6, 1999]

GERRY DIPASUPIL & SPOUSE vs. LEONARDO AGAN

THIRD DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this court dated SEPT 6 1999.

G.R. No. 139079 (Gerry Dipasupil & Spouse vs. The Hon. Judge RTC, Br. 23, Cagayan de Oro city, Leonardo Agan, Philadelphia Agan.)

Petitioners assail the decision of the Court of Appeals affirming the decision of the regional trial court which reversed the decision of the municipal trial court.

The present controversy stemmed from an action for forcible entry filed by private respondents against petitioners.

Upon submission by the parties of their respective position papers, the municipal trial court decided in favor of petitioners and dismissed the case.

On appeal, the regional trial court reversed, ruling that at the time the action was instituted, private respondent Philadelphia Agan was the owner of the property and reacquired rightful possession upon the expiration of the lease agreement with the incumbent lessee. This is so because under the law, ownership includes the right of possession. The mere allegation that the other party has instituted an action to claim or to recover ownership of the property does not, under the law, vest upon said party the right of possession.

Displeased, petitioners filed a petition in the Court of Appeals but the same was dismissed for being insufficient in form and substance because of petitioners' failure, to state the reason why service of the petition was not done by personal delivery; and to attach a certified true copy of the decision of the Municipal Trial Court. More importantly, petitioners failed to prove actual prior possession de facto of the subject property. What was established was that the subject lot was occupied by third persons who were allowed by private respondents to stay up to the end of the term of their lease.

Thus, the instant petition which must necessarily fail.

Time and again, the Court has ruled that conclusions of fact of a trial judge - as affirmed by the Court of Appeals - are conclusive upon the Supreme Court (First Philippine International Bank vs. Court of Appeals, 252 SCRA 80 [1996]).

Furthermore, in ejectment cases, the only issue for resolution is the physical or material possession of the property involved, independent of any claim of ownership set forth by any party litigants. Anyone of them who can prove prior possession de facto may recover such possession even from the owner himself which in the case at bar, petitioners failed to do (Gachon vs. De Vera, Jr., 274 SCRA 540 [1997]).

Lastly, the Court notes that the certification on non-forum shopping was signed by counsel and not by the petitioners themselves which may constitute sufficient reason by itself to deny the petition.

WHEREFORE, petition is denied due course.

SO ORDERED.

Very truly yours,

(Sgd.) JULIETA Y. CARREON

Clerk of Court

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