Republic of the Philippines

Municipal Trial Court in Cities

11th Judicial Region
Branch ____
Davao City

RODRIGO M. GERE, CIVIL CASE NO. ___________

Plaintiff,

FOR: FORCIBLE ENTRY

AND ATTORNEY’S
-versus-
FEES

DEFORDO MELANIO, JR.,

Defendant.
x----------------------x

COMPLAINT

COMES NOW, the PLAINTIFF, through counsel, and

unto this Honorable Court, respectfully states that:

1. The Plaintiff, RODRIGO M. GERE, is of legal age,

Filipino, married, and a resident of Andaya St., Daliao, Toril,
Davao City;

1.1. The Plaintiff may be served with

notices, orders and other legal processes of this
Honorable Court through the undersigned counsel
whose office is located at LUMBATAN,
CABADING, LAYOG & PINTO LAW OFFICES,
Door G-10 Genesis88 Arcade, Eco West Drive,
Ecoland, Davao City;

2. Defendant, DEFORDO MELANIO, JR., is of legal

age, Filipino, and a resident of Purok Sto. Rosario, Dumoy,
Davao City, where he may be served with notices, orders
and other legal processes of this Honorable Court;

3. Plaintiff and Defendant have the legal capacity to

sue and be sued;

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 CAUSE OF ACTION

4. On 18 May 1998, Defendant’s father, Defordo J.

Melanio, executed a Deed of Sale with Right to Repurchase
over a parcel of land in favor of Plaintiff duly acknowledged
by a Notary Public, Atty. Rodolfton S. de Leon, with
Document No. 501, Page No. 15, Book No. 122, Series of
1998, which instrument was registered with the Registry of
Deeds of Davao City with Entry No. 507201 on 08
November 2007. Copy of the Deed of Sale with Right to
Repurchase dated 18 May 1998 is hereto attached and
marked as Annex “A” and made integral part hereof;

5. Said parcel of land was then covered by Transfer

Certificate of Title No. T-241188 situated in Lot 8, Dushai
Village, Dumoy, Davao City with an area of Six Hundred
Forty-Eight (648) square meters, more or less, particularly
described herein as follows:

TRANSFER CERTIFICATE OF TITLE NO. T-

241188

“A parcel of land (Lot 8, of the subdivision plan

(LRC) Psd-105873, being a portion of Lot 1756-A-
7, described on plan (LRC) Psd-79261), situated
in the Barrio of Bago, City of Davao, Island of
Mindanao, bounded on the NE., points 3 to 4 by
Lot 3193, Davao Cadastre; on the SE., points 4 to
1, by Lot A; and on the SW., points 1 to 2, by Lot
C, of the subdivision plan; and on the NW., ponts
2 to 3 by Lot 1099, Davao Cadastre. Beginning at
a point marked “1” on plan, being S. 65 deg.
41’W., 736.68 m. from B. L. L. M. No. 25 Davao
Cadastre: 102;

N. 55 deg. 09’ W., 22.08 m. to point 2;

N 53 deg. 50’ E., 31.00 m. to point 3;
S. 55 deg. 04’ E., 22.00 m. to point 4;
S. 53 deg. 51’ W., 31.00 m. to point of
beginning;

Containing an area of SIX HUNDRED FORTY

EIGHT (648) SQUARE METERS, more or less. All
points referred to are indicated on the plan and
are marked on the ground as follows: Points 1 and
4 by P.S. cyl, conc. mons 15 x 60 cm.,

2
 respectively, bearings true. Date of the original
survey, February 1961-May 1920 and that of the
subdivision survey, May 2, 1969.”

6. By virtue of the said Deed of Sale with Right to

Repurchase, Transfer Certificate of Title No. T-241188 was
cancelled, and that a new Torrens title, particularly
Transfer Certificate of Title No. T-425348, was issued in
favor of Plaintiff. Copies of the Certified True Copy of the
cancelled Transfer Certificate of Title No. T-241188 and the
Certified True Copy of Transfer Certificate of Title No. T-
425348 are hereto attached and marked as Annexes “B”
and “C”, and made integral part hereof;

7. Plaintiff, from the time he bought the property

from the previous owner, Defordo J. Melanio, on 18 May
1998 and had the Deed of Sale with Right to Repurchase
registered in the Registry of Deeds of Davao City, he has
already acquired possession over the said property by
juridical act, specifically, through the issuance of Transfer
Certificate of Title No. T-425348 in his name. Consequently,
ownership and possession over the parcel of land subject of
conveyance has been transferred unto Plaintiff who has all
the legal rights to exercise the attributes of ownership
provided to him under the law;

8. Plaintiff, being the registered owner and lawful

possessor of the subject property, has been religiously
paying the real property taxes over the said parcel of land
alongside the sundry expenses incidental thereto. Copies of
the Tax Declaration bearing Tax Declaration No. 172-09-
007-020-160 are hereto attached and marked as Annexes
“D” to “D-2”, and made integral part hereof;

9. Sometime on January 2020, Plaintiff had the

occasion to have his property visited by his son, VINCENT
GERE, but was surprised to learn that Defendant has
already intruded the same and occupied the house erecting
in the said property. Without knowledge and consent from
the Plaintiff, Defendant unlawfully occupied the property.
Because of such unlawful occupancy of Defendant by
stealth, Plaintiff has been deprived possession thereof;

10. As the lawful owner and possessor of the subject

property, Plaintiff verbally demanded several times for the
Defendant to vacate the same. However, the latter did not

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heed to the former’s demands. He refused to vacate the
property and continued to occupy the same;

11. On 24 January 2020, Plaintiff filed a Complaint

before the Office of the Lupong Tagapamayapa of Brgy.
Dumoy for Ejectment docketed as Brgy, Case No. 029-2020.
Despite such, no amicable settlement ensued between the
parties. Because of the failed barangay conciliation, a
Certificate to File Action dated 12 March 2020 was issued
by the aforesaid Office in favor of the Plaintiff. Copy of the
Certificate to File Action dated 12 March 2020 is hereto
attached and marked as Annex “E” and made integral part
hereof;

12. For the last time, Plaintiff demanded the Defendant

to vacate the subject property by sending a demand letter
dated 22 May 2020 through registered mail with Registry
Receipt No. RE 275 000 968 ZZ. Copy of the Demand Letter
dated 22 May 2020 is hereto attached and marked as
Annex “F” and made integral part hereof;

13. The said demand letter sent by Plaintiff has been

received by Defendant, through Lyca D. Magsaysay for and
in his behalf, on 18 June 2020, as evinced by the herein
attached Registry Return Receipt. Copy of the Registry
Return Receipt is hereto attached and marked as Annex
“G” and made integral part hereof;

14. Notwithstanding receipt of the demand letter with

notice to vacate, Defendant continuously occupies the
subject property up to this date;

15. Judicial Affidavit of the Plaintiff dated _________ is

hereto attached for purposes of proving the ultimate facts in
relation to the unlawful occupancy of Defendant over his
property, as alleged in this Complaint, of proving the fact of
existence of the documents attached in this Complaint, and
of identifying and authenticating the same documents. Copy
of the Judicial Affidavit of the Plaintiff dated _________ is
hereto attached and marked as Annex “H” and made
integral part hereof;

16. Section 1, Rule 70 of the Rules of Court

provides when an action for forcible entry is proper. Thus:
x x x

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 “SECTION 1. Who may institute proceedings,
and when. — Subject to the provisions of the next
succeeding section, a person deprived of the
possession of any land or building by force,
intimidation, threat, strategy, or stealth, or a
lessor, vendor, vendee, or other person against
whom the possession of any land or building is
unlawfully withheld after the expiration or
termination of the right to hold possession, by
virtue of any contract, express or implied, or
the legal representatives or assigns of any
such lessor, vendor, vendee, or other person
may at any time within one (1) year after
such unlawful deprivation or withholding of
possession, bring an action in the proper
Municipal Trial Court against the person or
persons unlawfully withholding or depriving
of possession, or any person or persons
claiming under them, for the restitution of
such possession, together with damages and
costs.” (emphasis supplied);

x x x

17. In plethora of cases, it has been well-established

that in order for a forcible entry suit to prosper, the
following must be alleged and proved:

(1) prior physical possession of the property;

(2) unlawful deprivation of it by the defendant through

force, intimidation, strategy, threat or stealth; and

(3) the action must be filed within one (1) year from
the time the owners or legal possessors learned of
their deprivation of the physical possession of the
property;

18. Anent the foregoing, Plaintiff has a cause of action

against Defendant. Plaintiff was able to sufficiently alleged
and proved the afore-cited required elements for forcible
entry;

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 19. First, there was prior physical possession of the
subject property on the part of the Plaintiff when he bought
the same from Defendant’s father, Defordo J. Melanio,
through a Deed of Sale with Right to Repurchase dated 18
May 1998. By virtue of the said instrument, Transfer
Certificate of Title No. T-241188 in the name of Defordo J.
Melanio was cancelled, and that Transfer Certificate of Title
No. T-425348 was issued in favor of Plaintiff. Thus, Plaintiff
became the lawful and registered owner of the aforesaid
parcel of land. Emanating therefrom, he then became in
prior and lawful possession of the subject property;

20. Although as a rule, “possession” refers to nothing

more than prior physical possession, or possession de facto,
not possession de jure or legal possession, possession can
be acquired by juridical acts, too. As aptly pronounced in
Mangaser vs. Ugay, G.R. No. 204926, December 3,
2014:

x x x

“The Court, however, has consistently ruled

in a number of cases that while prior physical
possession is an indispensable requirement in
forcible entry cases, the dearth of merit in
respondent's position is evident from the principle
that possession can be acquired not only by
material occupation, but also by the fact that
a thing is subject to the action of one's will
or by the proper acts and legal formalities
established for acquiring such right. The case
of Quizon v. Juan, which surprisingly was relied
on by the CA, also stressed this doctrine.

Possession can be acquired by juridical

acts. These are acts to which the law gives the
force of acts of possession. Examples of these are
donations, succession, execution and
registration of public instruments, inscription
of possessory information titles and the like. The
reason for this exceptional rule is that
possession in the eyes of the law does not
mean that a man has to have his feet on
every square meter of ground before it can
be said that he is in possession. It is
sufficient that petitioner was able to subject

6
 the property to the action of his will. ”
(emphasis and underscoring supplied);

x x x

21. The fact that Plaintiff was able to acquire the

subject property by virtue of the 18 May 1998 Deed of Sale
with Right to Repurchase, and the subsequent registration
of it before the Registry of Deeds of Davao City, coupled
with the subsequent issuance of Transfer Certificate of Title
No. T-425348 under the name of Plaintiff, such juridical acts
were sufficient to establish Plaintiff’s prior possession of the
subject property. The issuance of a new transfer certificate
of title to the Plaintiff evidences ownership and from it, a
right to the possession of the property flows. Well-
entrenched is the rule that a person who has a Torrens title
over the property is entitled to the possession thereof;

22. To bolster more, Plaintiff’s claim of possession is

coupled with tax declaration. While tax declarations are not
conclusive proof of possession of a parcel of land, they are
good indicia of possession in the concept of an owner, for no
one in his right mind would be paying taxes for a property
that is not in his actual or constructive possession. Thus,
together with the Torrens title, the tax declaration attached
herewith strengthens further Plaintiff’s claim of possession
over the parcel of land before his dispossession upon
knowledge of the same sometime on January 2020 by
Defendant;

23. Second, Plaintiff was unlawfully deprived of

possession of the subject property by stealth. Without his
knowledge and consent, Defendant intruded the property,
and started occupying the same. It was only last January
2020 that Plaintiff became aware of his unlawful and
stealthy occupancy over the subject property;

24. As decided in Diaz, et. al., vs. Spouses

Punzalan, G.R. No. 203075, March 16, 2016:

x x x

“This clearly falls under stealth, which is

defined as any secret, sly or clandestine act
to avoid discovery and to gain entrance into,
or to remain within residence of another

7
 without permission. Here, the evidence clearly
reveal that the spouses' possession was illegal at
the inception and not merely tolerated,
considering that they started to occupy the
subject lot and thereafter built a house on the
same without the permission and consent of
petitioners. The spouses' entry into the land was,
therefore, effected clandestinely, without the
knowledge of the owners. Consequently, it is
categorized as possession by stealth which is
forcible entry.” (emphasis and underscoring
supplied);

x x x

25. Defendant’s entry into the subject property was,

therefore, effected clandestinely, without the knowledge of
the Plaintiff, which can be categorized as possession by
stealth;
26. Lastly, this instant Complaint was filed within one
(1) year from the time the Plaintiff learned of his deprivation
of the physical possession of the property sometime on
January 2020. When he discovered the surreptitious
intrusion of Defendant over his registered land, he
demanded Defendant for several times to vacate it, but
these fell on deaf ears. Plaintiff, then, filed a barangay
complaint with the Lupong Tagapamayapa of Brgy, Dumoy.
Even if the barangay conciliation proved to be futile,
Plaintiff still sent a demand letter to Defendant dated 22
May 2020 asking him to vacate the property for the last
time. When his final demand remained unheeded, Plaintiff
was constrained to file this Complaint for forcible entry
before this Honorable Court;

27. Reckoning from the time Plaintiff learned of his

deprivation of the physical possession of his own property,
the filing of this action was well within the one (1) year-bar
rule to file the same;

28. Suffice it to state that, the acts of Defendant in

stealthily entering the property of Plaintiff, and taking over
the same without prior knowledge and consent from the
Plaintiff, is patently a violation of the latter’s proprietary
rights, the commission and the continuance of the unlawful
acts aforementioned of Defendant verily works injustice to
the Plaintiff;

8
 29. By reason of Defendant’s action, Plaintiff was
compelled to engage the services of the undersigned
counsel to protect his interests, for which the Defendant
should be liable to pay the amount of FIFTY THOUSAND
PESOS (PHP50,000.00) plus LITIGATION EXPENSES
in the amount of TWENTY THOUSAND PESOS
(PHP20,000.00), and TWO THOUSAND PESOS
(PHP2,000.00) for every court appearances, for and as
ATTORNEY’S FEES. Copies of the Contract of Service
dated ______ and Acknowledgment Receipt dated _______ are
hereto attached and marked as Annexes “I” and “J”, and
made integral part hereof;

PRAYER

WHEREFORE, premises considered, it is respectfully

prayed of this Honorable Court that, after the proceedings,
judgment be rendered in favor of the Plaintiff, and that the
Defendant be ORDERED to:

1) Permanently VACATE the property in question and

give the immediate right of possession to the Plaintiff;

2) PAY the Plaintiff the amount of FIFTY

THOUSAND PESOS (PHP50,000.00) plus LITIGATION
EXPENSES in the amount of TWENTY THOUSAND
PESOS (PHP20,000.00) and TWO THOUSAND PESOS
(PHP2,000.00) for every court appearances, for and as
ATTORNEY’S FEES; and

3) PAY the costs of suit.

Other reliefs, just and equitable under the premises,

are likewise prayed for.

RESPECTFULLY SUBMITTED.

In the City of Davao, Philippines, _________________.

9
 LUMBATAN*, CABADING, LAYOG & PINTO LAW
OFFICES
(*Atty. Alexis M. Lumbatan – On Leave)
Counsel for the Plaintiff
LUMBATAN LAW
Door G-10, Genesis88 Arcade,
Eco West Drive, Ecoland, Davao City
Telefax No. (082) 296-4114
[email protected]

By:

KAREN CATE I. PINTO

IBP No. 102850 – 01/18/2020 - Davao City
PTR No. 3628414C – 12/19/2019 - Davao City
Roll of Attorney No. 70440
MCLE Compliance No. VI – 0009775 – 06/07/18

EXPLANATION

Copies of this Complaint was served to Defendant

through registered mail due to lack of manpower services,
distance and time constraint, and that personal service of
the same is not practicable.

KAREN CATE I. PINTO

Copy furnished via registered mail:

DEFORDO MELANIO, JR.

Defendant
Purok Sto. Rosario,
Dumoy, Davao City
Registry Receipt: _____________
Date received: _______________

10
Republic of the Philippines}
In the City of Davao. . . . .}ss

VERIFICATION AND CERTIFICATION

OF NON-FORUM SHOPPING
I, RODRIGO M. GERE , of legal age, Filipino, married
and a resident of Andaya St., Daliao, Toril, Davao City, after
being duly sworn to in accordance with law do hereby
depose and state that:

1. I am the Plaintiff in the above-entitled Complaint,

and have caused the preparation of the foregoing
Complaint;

2. I have read and understood all the contents

therein, and the same are true and correct based on my
personal knowledge and information, and on authentic
documents;

3. I have not filed the foregoing Complaint to harass,

cause unnecessary delay , or needlessly increase the cost of
litigation, and the factual allegations therein have
evidentiary support;

4. I certify that I did not commence any action or

proceeding involving the same issues in any other branches
of this Board, the Supreme Court, the Court of Appeals or
difference divisions thereof, or any other tribunal or agency
and to the best of my personal knowledge, no such action or
proceeding in the Supreme Court, the Court of Appeals, or
different divisions thereof, or any tribunal agency, and
should I learned that similar action or proceeding has been
filed or is pending thereof in any other tribunal or agency, I
undertake to report the fact within five (5) calendar days
therefrom, to this Honorable Court.

IN WITNESS WHEREOF, I have hereunto set my

hand this _________________ in Davao City, Philippines.

RODRIGO M. GERE
Affiant
______________________

11
 Competent Evidence of Identity

SUBSCRIBED AND SWORN to before me this

________________, the affiant who exhibited to me his
competent evidence of identity above-indicated.

Doc. No. ___;

Page No. ___;
Book No. ___;
Series of 2020.

Republic of the Philippines}

In the City of Davao. . . . .}ss

AFFIDAVIT OF SERVICE
I, _____________ , of legal age, Filipino, _________ and a
resident of ___________, Davao City, after being duly sworn
to in accordance with law do hereby depose and state that:

1. I am the process server of LUMBATAN,

CABADING, LAYOG & PINTO LAW OFFICES, with office
address at Door G-10 Genesis88 Arcade, Eco West
Drive, Ecoland, Davao City;

2. On _________, in my aforementioned capacity, I

had served a copy of the Complaint in the case entitled
“RODRIGO M. GERE VS. DEFORDO MELANIO, JR.”
docketed as Civil Case No. _____________ by depositing a
copy in the post office in a sealed envelope, plainly
addressed to Defordo Melanio, Jr. at his residence located
at Purok Sto. Rosario, Dumoy, Davao City with postage fully
paid, as evinced by Registry Receipt No. _________ attached
and with instructions to the post master to return the mail
to sender after ten (10) calendar days if undelivered.

IN WITNESS WHEREOF, I have hereunto set my

hand this _________________ in Davao City, Philippines.

______________
Affiant
______________________
Competent Evidence of Identity

12
 SUBSCRIBED AND SWORN to before me this
________________, the affiant who exhibited to me his
competent evidence of identity above-indicated.

Doc. No. ___;

Page No. ___;
Book No. ___;
Series of 2020.

13