REPUBLIC OF THE PHILIPPINES

SUPREME COURT
MANILA

FIRST DIVISION

DIANA BARBER, REX JIMENO, G.R. No. 205630

JACQUELYN BEADO, AND
ROCHELLE TAN, Present:

Petitioners, PERALTA, CJ, Chairperson

CAGUIOA,
- versus - CARANDANG,
ZALAMEDA, and
GAERLAN,JJ
ROLANDO CHUA,

Promulgated: January 12, 2021

Respondent.
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DECISION

ZALAMEDA, J.:

A lawful owner has the right to fully enjoy possession over his entire property, not only over the land's surface but also over the
structures built thereon, including everything underneath and the airspace above it up to a reasonable height. As such, a landowner has the right to
eject those who unlawfully encroach and build upon not only on the lot itself, but as well as on the structures existing on his property.

The Case

Before this Court is a petition for review on certiorari1 assailing the Decision dated 09 October 2012 and Resolution3 dated 28
January 2013 of the Court of Appeals (CA) in CA-G.R. SP No. 122303, which affirmed the Decision4 dated 24 January 2011 and Order5 dated
30 August 2011 of Branch 74, Regional Trial Court (RTC), Antipolo City, in Special Civil Case No. 09-912.

Antecedents

On 10 August 2007, Rolando Chua (respondent) filed a complaint6 for ejectment of extended structures that partly occupied the
portion of firewall, damage to property with prayer for moral and exemplary damages with the Municipal Trial Court (MTC) of Cainta, Rizal,
docketed as Civil Case No MTC~1259. He alleged that Diana Barber (Barber), his neighbor, built a portion of the second floor of her house on
top of his firewall.

Barber, Rex Jimeno (Jimeno), and Jaquelyn Beado (Beado) (petitioners, collectively), filed a motion to dismiss,7 claiming that the
MTC had no jurisdiction over the subject matter of the case and Barber's person. They claimed that the complaint did not raise the issue of
material or physical possession of a property but the removal of certain structures that encroached upon -respondent's property. The complaint -
referred to encroadinieri.t, ·not of a land or building, but of a firewall, which they claim cannot be a subject of an ejectment case. As such, the
case is one for specific performance, which is ·within the RTC's jurisdiction.

Petitioners also contend that the action being in personam, summons should have been personally served to Barber. They alleged that
at the time of service, on 16 August 2007, Barber was not in the Philippines as she is allegedly a citizen and permanent resident of the United
States. They argued that the server's return did not contain any explanation as to why substituted5ervice was resorted to.

In an Order dated 04 August 2009, the MTC dismissed respondent's complaint for lack of jurisdiction. It held that the complaint failed
to allege stealth or tolerance, and that respondent's prayer_ seeking removal of petitioners' permanent structures on top of his firewall falls short
of what is required in an ejectment complaint.

Ruling of the RTC

Upon appeal; the RTC reversed the assailed Order and remanded the case to the MTC. It found that respondent's complaint
sufficiently alleged a cause of action for forcible entry. Further, the RTC ruled that a firewall can be the subject of an ejectment case since it is an
immovable property under Article 415 of the Civil Code.

Aggrieved, petitioners brought the case to the CA.

Ruling of the CA

The CA affirmed the decision of the RTC. It held that the allegations of respondent's complaint involving his firewall make out a case
for ejectment. It ruled that petitioners' act of taking full control of respondent's firewall by constructing part of Barber's second floor thereon
without respondent's consent constitutes unlawful dispossession of his property.

It also found that the MTC validly acquired jurisdiction over Barber's person and that the process server validly resorted to substituted
service. Noting that Barbers regularly returned to her house in Cainta, Rizal, the CA found that she is a resident defendant who is temporarily out
of the country. Hence, -substituted service to a person of suitable age and discretion found in the premises was allowed.

Arguments of the Petitioners

Petitioners insist that the MTC has no jurisdiction over respondent's complaint, which merely referred to his firewall and the
inconveniences that he suffered as a result of petitioners' construction. They argue that physical possession is a necessary requirement in an
ejectment ·case. They contend that respondent's firewall is not capable of·· such physical possession, "as it is ·not a land or building under Rul-e
70 of the Rules of Court. Finally, they also maintain that the trial court did not acquire jurisdiction over Barber's· -person, who they claim to be a
non-resident defendant.

Issues

This Court is tasked to determine whether or not the MTC has jurisdiction over Barber's person and the subject matter of the
complaint.

Ruling of the Court

 The petition lacks merit.

The MTC has jurisdiction over respondent’s complaint.

The jurisdiction of the Court, as well as the nature of the action, are determined by the allegations in the complaint. In ejectment cases,
the complaint should embody such statement of facts as to bring the party clearly within the class of cases for which Section 1, Rule 70 of the
Rules of Court provides a summary remedy, and must show enough on its face to give the court jurisdiction without resort to parol evidence.

Section 1, Rule 70 of the Rules of Court requires that in actions for forcible entry, ·the plaintiff is deprived of the possession of any
land or building by force, intimidation, threat, strategy, or stealth and that the action is filed any time within one year from the time of such
unlawful deprivation of possession. This requirement implies that the possession of the land by the defendant is unlawful from the beginning as
he acquires possession thereof by unlawful means.

While it is imperative that the complaint sufficiently allege a cause of action for ejectment, it is not essential for the complaint to
expressly employ the language of the law. It is enough that facts are set up to show that dispossession took place under said conditions.

In this case, the pertinent allegations in the complaint before the MTC are as follows: ·

That sometime on November 1988, in plaintiff's 125 square meters property lot area, the plaintiff installed an
approximately 6" thick concrete hollow blocks by 2.36 meters height by 15.69 meters length firewall adjacent to defendant's lot
property, the said firewall remained standing for more thar1 eighteen (18) years within at any dispute or question from the defendants.
[T]he problem came up . when the [d]efendants start[ed] constructing the second-floor improvement of their house.

The defendants also has (sic) an existing firewall opposite to the plaintiff's 15.69 meters length firewall its length is
approximately half of plaintiff's firewall, because they did not install full firewall on their -backyard part.

That sometimes (sic) on February 2007, when defendants start[ed] constructing the improvement of their second floor,
plaintiff knows_ fully well that defendant' (sic) laborers were made able to set foot on his existing-firewall and roofs in order to layer
concrete hollow blocks, finishing (palitada) and painting.

From February to May 2007 of defendants' construction; the plaintiff was made to suffer noise of falling debris and residue
of cement and heavy footsteps of defendants' laborers from his roof. The plaintiff just simply disregarded the noise on what was going
on as long as it will not damage the plaintiff's property, especially his roof, and being the defendant's (sic) good neighbor, the plaintiff
did not complain what he and his family experience during the entire construction of their house improvements.

However, some time of 13 July 2007, when heavy rain came, the plaintiff had experienced water downfall from his roofs
(sic) causing flood and stains to --his flooring, not to mention damage to us personal belongings. After the rain, he -checked his roof
on what 'caused the water downfall, he noticed that his. roofs (sic) were dilapidated causing to open all joints and crevice, and
scattered residue of dry cement, he also notice[d] that the dowels from his existing firewall were cut-off by · defendants
without his permission, they even put another layer of concrete hollow block to his existing firewall to make _it level to the
constructed second floor of their improvement. Likewise, they. put an iron grill that permanently occupied portion of his
firewall, they also partly extended their structure (2nd floor) that occupy portion of plaintiff's firewall xxx

Moreover, when defendants' partly deface[d] the concrete hollow block to his existing costura finish firewall for his further
inspection of damages: The defendants' grandmother came in ruslung and shouting, "bakit mo pinupukpok anft pader?Bakit mo
ginigiba. pader namin?"plainti:l'f nicely replied her "tinitingnan ko Zang po ang pader ko, nasakop _ pala ninyo ang pader ko, paano
ko ngayon mapapalitan ang flushing ng bubong ko kung bahagyang nakapatong and second.floor ng bahay nyo sa pader ko? At saka
nayupi at nabutqs ang mg4 bubong ko d4hil ·Sa ginawang xxx ng · mga trabahador ninyo at sa mga natuyong semento,"

XXX

Moreover, after the initial hearing, ocular inspection ·was made by the Office of Municipal City of Cainta and it was
proven that the disputed existing firewall which the plaintiff installed eighteen (18) years ago was located and installed inside
plaintiff's property lot area. Likev.1se, l.t[was] also proven that defendants were (sic) partly extended their permanent structures that
occupy portion of plaintiff's firewall property, and due to plaintiff's damaged roof and flashing caused by defendants during the entire
construction of their house improvement[,] the plaintiff has experienced the suffering of pouring water from their roof during rainy
days, Consequently, plaintiff cannot replace nor remove his damaged flashing due to obstruction of defendants' permanent structure
that permanently occupied the portion of his firewall and flashing.24 (Emphasis supplied)

This Court finds that respondent's complaint sufficiently alleges a cause of action for forcible entry. Respondent claimed that he is the
owner of a house and lot with a firewall next to Barber’s property. Further, he alleged that in building the second floor of Barber's house, hollow
blocks and iron grills were placed on top in his firewall and the dowels thereof removed without his consent. Finally, _he contended that by
reason of petitioners' construction, respondent was deprived of -the possession of part of his property.

From the allegations of his complaint, it is clear that he merely allowed petitioners' construction workers to use the firewall so that
they can properly lay the foundation for Barber's second floor. He never consented to, and was surprised by, the intrusion or extension of Barber's
property on top of his firewall. These allegations clearly qualify as dispossession by stealth, which is defined as any secret, sly, or clandestine act
to avoid discovery and to gait, entrance into, or to remain within residence of another without permission.

Given the sufficiency of the complaint, the RTC and CA correctly affirmed the MTC's jurisdiction over the complaint.

That respondent's complaint did not refer to dispossession of a parcel of land or a building. does not mean that the remedy of
ejectment is unavailable. In Philippine Long Distance Telephone Company v. Citi Appliance MC. Corporation,26 the Court upheld the remedy of
ejectment for dispossession of the subterranean portion of a titled property, noting that rights over lands are indivisible. The owner of a parcel of
land has rights not only to the land's surface, but also to everything underneath and the airspace above it up to a reasonable height. · ··

By parity of reasoning, an aggrieved owner/possessor of a property can properly resort to a case for ejectment in order to remove
structures affecting his right to possess the entirety of his property, including his firewall.

MTC acquired jurisdiction over the. person of petitioner Barber

While service of summons should generally be effected on the defendant herself, case law allows resort to substituted service for
defendants who are residents but are temporarily out of the country. 27 Despite Barber's ·allegation that she is now an American citizen, the
Court agrees with the CA that she is likewise a Philippine resident who is temporarily out of the country. Jurisprudence28 has defined a dwelling,
house, or residence as the place where the person named in the summons is living at the. time when the service is made, even though he may be
temporarily out of the country at the time. Indeed, it remains undisputed that Barber stays in the house adjacent to respondent's property
whenever she returns to the Philippines. Under Section 7, Rule 14 of the Rules of Court, service of summons may properly be made to a person
of suitable age and discretion found at · defendant's ·residence. 1n the case · of Pavlow v. Mendenilla, this Court also upheld the resort to
substituted service of summons upon an American citizen who maintained a residence in Makati but was out of the country at the time of service.
Guided by the foregoing, the service of summons to Barber's aunt Norma Balmastro should be deemed sufficient to clothe the RTC jurisdiction
over Barber.'s person.

WHEREFORE, in view of the foregoing, the · petition is hereby DENIED. The Decision dated 09 October 2012 and Resolution
dated 28 January 2013 of the Court of Appeals in CA-G.R SP No.· 122303 are AFFIRMED. The Municipal Trial Court of Cainta; Rizal is
DIRECTED to resolve the instant case with dispatch.

SO ORDERED.