THIRD DIVISION

[G.R. No. 142276. August 14, 2001.]

FLORENTINO GO, JR., MA. LUZVIMINDA GO, LEONIDA GO,

FELIPE GO, MARIETTA GO, ROBERTO GO, ESTRELITA GO,
ANTONIO GO, ALBERTO GO, BABY LUCILA GO and MANUEL
GO, petitioners, vs. HON. COURT OF APPEALS and AURORA I.
PEREZ, respondents.

Benito P. Fabie for petitioners.

Flordeliza M. Ramos-Lagasca for private respondent.

SYNOPSIS

A complaint for ejectment was filed by the petitioners against private

respondent, Aurora I. Perez, in the Metropolitan Trial Court (MTC). Petitioners
are the children and the only surviving heirs of the late spouses Florentino,
Sr. and Lucila Go who both died intestate and in whose name a parcel of
land situated in Caloocan City was registered. Through mere tolerance of
petitioners as well as their late mother, private respondent was allowed to
occupy the said parcel of land temporarily on condition that she would
vacate the same once she was asked. In December 1994, petitioners finally
asked private respondent to vacate the premises. Several conciliation
meetings were held but no settlement was reached, and as a result of which
a certification to file action was issued. In her answer, private respondent
alleged that she applied for the acquisition of the said lot with the PHHC and
its successor-in-interest, the National Housing Authority (NHA). She claimed
that it was only when Estrelita Go asked her to vacate the premises in
December 1994 that she learned that the land had already been titled in the
name of Lucila Go since 1980. Private respondent also alleged that Lucila Go
acquired the said title through false statements in her application with the
PHHC and that she (private respondent) had the preferential right to acquire
the property. After the issues had been joined, the MTC heard the case under
the Rule on Summary Procedure and decided on the basis of the position
papers and the oral and documentary evidence of the parties. The MTC
rendered its decision dismissing the case without prejudice. According to the
MTC, the case was neither an action for unlawful detainer nor forcible entry.
On appeal to the Regional Trial Court (RTC) of Caloocan City, petitioners
assailed the MTC decision. The lower appellate court reversed and set aside
the judgment of the MTC. Dissatisfied with the RTC's pronouncements,
respondent Aurora I. Perez elevated the case to the Court of Appeals. The
Court of Appeals reversed the decision of the RTC and reinstated that of the
MTC. Hence, the present petition.
The Court found no cogent reason to disturb the findings and
conclusions of the Court of Appeals in its questioned decision. If the
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 petitioners were indeed the owners of the subject lot and were unlawfully
deprived of the real right of possession, they should have presented their
claim before the regional trial court in an accion publiciana or an accion
reivindicatoria, and not before the metropolitan trial court in a summary
proceeding of unlawful detainer or forcible entry. For even if one is the
owner of the property, the possession thereof cannot be wrested from
another who has been in the physical or material possession of the same for
more than one year by resorting to a summary action for ejectment. The
petition was denied and the judgment of the Court of Appeals was affirmed.

SYLLABUS

1. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; EJECTMENT CASES; AN

EXPEDITIOUS MEANS OF PROTECTING ACTUAL POSSESSION OR RIGHT OF
POSSESSION OF PROPERTY; CONSTRUED. — Ejectment cases are summary
proceedings intended to provide an expeditious means of protecting actual
possession or right of possession of property. Title is not involved, that is
why it is a special civil action with a special procedure. The only issue to be
resolved in ejectment cases is the question as to who is entitled to the
physical or material possession of the premises or possession de facto.
2. ID.; ID.; FORCIBLE ENTRY AND UNLAWFUL DETAINER;
DISTINGUISHED. — The summary actions for forcible entry and unlawful
detainer are distinguished from each other as follows: "Forcible entry and
unlawful detainer cases are two distinct actions defined in Section 1, Rule 70
of the Rules of Court. In forcible entry, one is deprived of physical possession
of land or building by means of force, intimidation, threat, strategy, or
stealth. In unlawful detainer, one unlawfully withholds possession thereof
after the expiration or termination of his right to hold possession under any
contract, express or implied. In forcible entry, the possession is illegal from
the beginning and the basic inquiry centers on who has the prior possession
de facto. In unlawful detainer, the possession was originally lawful but
became unlawful by the expiration or termination of the right to possess,
hence the issue of rightful possession is decisive for, in such action, the
defendant is in actual possession and the plaintiff's cause of action is the
termination of the defendant's right to continue in possession." "What
determines the cause of action is the nature of defendant's entry into the
land. If the entry is illegal, then the action which may be filed against the
intruder within one year therefrom is forcible entry. If, on the other hand, the
entry is legal but the possession thereafter became illegal, the case is one of
unlawful detainer which must be filed within one year from the date of the
last demand."
3. ID.; ID.; UNLAWFUL DETAINER; PRESENT WHEN ONE WHOSE
STAY IS MERELY TOLERATED RIGHT FROM START OF HIS POSSESSION OF
THE PROPERTY IS REQUIRED TO LEAVE; NOT PROVEN IN CASE AT BAR. — It is
settled that one whose stay is merely tolerated becomes a deforciant
illegally occupying the land the moment he is required to leave. It is
essential in unlawful detainer cases of this kind, that the plaintiff's supposed
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 acts of tolerance must have been present right from the start of the
possession which is later sought to be recovered. This is where petitioners'
cause of action fails. The appellate court, in full agreement with the MTC
made the conclusion that the alleged tolerance by their mother and after her
death, by them, was unsubstantiated. On this point, we defer to the findings
of the MTC as affirmed by the Court of Appeals. The Supreme Court does not
review findings of facts by the Court of Appeals unless the findings of the
appellate court are mistaken, absurd, speculative, conjectural, conflicting,
tainted with grave abuse of discretion, or contrary to the findings culled by
the trial court of origin. Here, we find no infirmity or anything reversible in
the aforesaid findings arrived at by both the MTC and the Court of Appeals.
The evidence revealed that the possession of defendant was illegal at the
inception and not merely tolerated as alleged in the complaint, considering
that defendant started to occupy the subject lot and then built a house
thereon without the permission and consent of petitioners and before them,
their mother.
4. ID.; ID.; FORCIBLE ENTRY; WHEN NOT PROPER; CASE AT BAR. —
As explained in Sarona vs. Villegas, cited in Muñoz vs. Court of Appeals
tolerance must be present right from the start of possession sought to be
recovered, to categorize a cause of action as one of unlawful detainer not of
forcible entry, to wit: "But will this rule as to tolerance hold true in a case
where there was forcible entry at the start, but the lawful possessor did not
attempt to oust the intruder for over one year, and only thereafter filed
forcible entry suit following demand to vacate? . . . . A close assessment of
the law and the concept of the word 'tolerance' confirms our view heretofore
expressed that such tolerance must be present right from the start of
possession sought to be recovered, to categorize a cause of action as one of
unlawful detainer not of forcible entry. Indeed, to hold otherwise would
espouse a dangerous doctrine. And for two reasons. First. Forcible entry into
the land is an open challenge to the right of the possessor. Violation of that
right authorizes the speedy redress — in the inferior court — provided for in
the rules. If one year from the forcible entry is allowed to lapse before suit is
filed, then the remedy ceases to be speedy; and the possessor is deemed to
have waived his right to seek relief in the inferior court. Second, if a forcible
entry action in the inferior court is allowed after the lapse of a number of
years, then the result may well be that no action for forcible entry can really
prescribe. No matter how long such defendant is in physical possession,
plaintiff will merely make a demand, bring suit in the inferior court — upon a
plea of tolerance to prevent prescription to set in — and summarily throw
him out of the land. Such a conclusion is unreasonable. Especially if we bear
in mind the postulates that proceedings of forcible entry and unlawful
detainer are summary in nature, and that the one year time bar to suit is but
in pursuance of the summary nature of the action. It is well to remember
that after the lapse of the one year period, suit must be started in the Court
of First Instance in an accion publiciana. The RTC erred in treating the
complaint as a case of forcible entry and ruling in favor of petitioners since
there was no allegation and proof of prior physical possession by the
petitioners. In forcible entry, the complaint must allege that one in physical
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 possession of a land or building has been deprived of that possession by
another through force, intimidation, threat, strategy or stealth. Moreover,
the action should be brought within one year from date of forcible entry. In
the case at bar, petitioners came to know that defendant was occupying the
subject land way back in 1977, but filed the case only in 1995.

DECISION

GONZAGA-REYES, J : p

The decision 1 promulgated on January 27, 1999 by respondent Court

of Appeals in CA-G.R. SP No. 46779 reversing the decision of the regional
trial court, as well as its resolution of February 28, 2000 denying herein
petitioners' motion for reconsideration, are assailed in this petition for review
on certiorari. cAHITS

This case originated from a complaint for ejectment filed by herein

petitioners Florentino, Jr., Luzviminda, Leonida, Felipe, Marietta, Roberto,
Estrelita, Alberto and Baby Lucila (all surnamed Go), as plaintiffs, against
herein private respondent Aurora I. Perez, as defendant, in the Metropolitan
Trial Court (MTC) of Caloocan City as Civil Case No. 22172, which complaint
alleges these material facts:
xxx xxx xxx
2. Plaintiffs are the children and the only surviving heirs of
the late spouses Florentino, Sr. and Lucila Go who both died intestate
on June 10, 1973 and January 22, 1988, respectively, and in whose
name a parcel of land situated in Caloocan City is registered under
Transfer Certificate of Title No. C-32110.
A copy of said Transfer Certificate of Title No. C-32110 is
attached hereto and marked as Annex "A" and made as an integral
part of this complaint.

3. Through mere tolerance of plaintiffs as well as their late

mother, defendant was allowed to occupy the said parcel of land
temporarily on condition that she would vacate the same once she is
asked.

4. In December, 1994, plaintiffs, feeling the need to establish

another residence to accommodate a growing family finally asked
defendant to vacate the premises. This demand to vacate was
repeated several times more but the same went unheeded even up to
this time thus prompting plaintiffs to seek the help of the local
Barangay office.
5. Several conciliation meetings were held but no settlement
was reached and as a result of which a Certification to File Action was
issued as shown by the attached copy of the same marked as Annex
"B" and made as an integral part of the complaint.

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 6. By reason of defendant's unjustified refusal to vacate the
premises notwithstanding repeated demands therefor, plaintiffs were
forced to engage the services of counsel for an agreed fee of P5,000.00
plus P500.00 per appearance for which defendant should be made to
pay plaintiffs. Defendant should likewise be made to pay plaintiffs
litigation expenses of no less than P10,000.00 and the sum of at least
P2,000.00 a month for the reasonable use and occupancy of the
premises from January, 1995 until the same is vacated." 2

In her answer, 3 defendant denied the allegations of the plaintiffs and

invoked the following alternative defenses, among others: that she has been
occupying the subject land since 1963, through permission of the security
guards of the People's Homesite and Housing Corporation (PHHC); that she
cleared the said land and constructed houses for her family thereon, and
applied for its acquisition with the PHHC and its successor-in-interest, the
National Housing Authority (NHA); that it was only in December, 1994, when
Estrelita Go demanded that she vacate the premises, that she learned that
the land had already been titled in the name of Lucila Go in 1980; that Lucila
Go acquired the said title through false statements in her application with
the PHHC; and that she has the preferential right to acquire the property.
After the issues have been joined, the MTC heard the case under the
Rules on Summary Procedure and decided on the basis of the position
papers and the oral and documentary evidence of the parties. ETaHCD

On August 26, 1996, the MTC rendered its decision dismissing the case
without prejudice. According to the MTC, the case is neither an action for
unlawful detainer nor forcible entry. The MTC reasoned out that it could not
be a case for unlawful detainer because plaintiffs failed to substantiate their
claim that defendant's possession of the subject parcel of land was by mere
tolerance as the plaintiffs in open court denied such tolerance, either by
their parents or by themselves; and neither could it be forcible entry for
failure to file the action within the one year period counted from the date of
forcible entry.
On appeal to the Regional Trial Court (RTC) of Caloocan City, Branch
131, in Civil Case No. 17707, plaintiffs assailed the MTC decision. On
December 18, 1997, said lower appellate court reversed and set aside the
judgment of the MTC, disposing as follows:

(1) Ordering the defendant-appellee and all persons claiming

rights under her to immediately vacate the subject premises,
particularly, Lot 10, Block 50 of the consolidation subdivision
plan PCS-5914, situated in Camarin, Caloocan City, and
covered by TCT No. C-32110;

(2) Ordering the plaintiff-appellee to pay plaintiffs-appellants

P5,000.00 as and for attorney's fees;
(3) Ordering the defendant-appellee to pay plaintiffs-appellants
the amount of P2,000.00 per month for the reasonable use
and occupancy of the subject premises from the date of the
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 filing of the complaint in court on June 27, 1996 until she
finally vacates the same, and to pay the costs of suit;
(4) Ordering the dismissal of defendant-appellee's counterclaim
for lack of merit. 4

In reversing the MTC, the RTC reasoned out as follows:

"However, the lower court had overlooked and misappreciated
facts of substance in rendering its assailed decision.
It was not reliably disputed that a certain attorney was allowed
by the registered owner Lucila Go to temporarily utilize the house
within the subject premises sometime in 1964 and it was only in 1977
that the defendant-appellee was first seen to be residing with the
attorney her relative, in the said house and, thus she was similarly
tolerated to stay thereat. It was only sometime in December 1994 that
demand was made upon the defendant-appellee to vacate the subject
premises.
The lower court overlooked and misappreciated the facts when it
concluded that the plaintiffs denied that tolerance was given to the
defendant-appellee because what was propounded by the plaintiffs-
appellants during the preliminary conference was that their mother did
not allow the defendant to build her house on the premises (TSN,
February 29, 1996, pages 5 and 6) and not that the claim of tolerance
was denied. In this complaint for ejectment, the remedies of unlawful
detainer and forcible entry have been fully substantiated. CASaEc

As regards to unlawful detainer, the defendant-appellee, who

was able to lawfully enter the subject premises by residing with her
relative attorney, who was tolerated to temporarily occupy and reside
in the house within the premises, is now being asked to vacate the
same but refused to heed the demand. 'After demand and its
repudiation, the continuing possession of private respondent became
illegal and the complaint for unlawful detainer filed by petitioner was
its proper remedy." ( Asset Privatization vs. Court of Appeals, 229 SCRA
1994).
As regards to forcible entry, the subsequent construction and
occupancy of defendant-appellee's house was by stealth. Consistent
with the doctrine laid down in the case of Sumulong vs . Court of
Appeals, 232 SCRA 372, which applies by analogy, the defendant-
appellee was able to avoid discovery and to gain entrance into and
remain within the subject premises, the defendant-appellee, without
permission, and by her secret or clandestine act of residing first with
her relative attorney who was tolerated to reside temporarily in the
said premises, succeeded in constructing her own house which she
finally occupied. Applicable in this case, by analogy, is the
pronouncement in Piano vs. Court of Appeals, 169 SCRA 485 (1989)
that 'The remedies of forcible entry and illegal detainer are both
allowed in a single action as illegal detainer refers to the 5-hectare
portion of the land while the forcible entry refers to the remaining
portion.'

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 It is undubitable that the lower court erred in its conclusion that
the claim of tolerance was denied and that if this case is for forcible
entry, this ejectment case should have been filed within one (1) year
from as early as 1977 despite the evidence on record that demand was
made in December 1994 and the case for ejectment was filed just
about six (6) months after or, specifically, on June 27, 1995, which
filing is well within the prescribed period to file the case in court. For
sure, it has been held in Elane vs. Court of Appeals, 172 SCRA 822
(1989) that 'Where forcible entry was made clandestinely, the one year
presumptive period should be counted from the time respondent
demanded that the deforciant desist from such possession when the
former learned thereof,' and the essence of such pronouncement is
that 'to deprive the lawful possessor of the benefit of summary action,
under Rule 70 of the Revised Rule, simply because the stealthy
intruder manages to conceal the trespass for more than a year would
be to reward clandestine usurpation even if they are unlawful' ( Vda. de
Prieto vs. Reyes, 14 SCRA 430). DTEHIA

Furthermore, as held in the Mabalot vs. Madela, 121 SCRA 347,

the time limitation of one year within which to file an action for forcible
entry and detainer is reckoned not from the moment of occupancy by
the defendant, but from the time that his possession becomes
unlawful.
In this case, the jurisdictional requirement of demand was
complied with as it was alleged in the complaint that demand was
made in December 1994 for defendant to vacate the premises, thus, in
substance, where a complaint in an ejectment case sufficiently alleges
prior demand, the jurisdictional requirement is deemed complied with
(Hautea vs. Magallon, 12 SCRA 514)."

Dissatisfied with the RTC's pronouncements, defendant Aurora I. Perez

elevated the case to the respondent Court of Appeals. On January 27, 1999,
the Court of Appeals rendered judgment in CA-G.R. SP No. 46779 reversing
the decision of the RTC and reinstating that of the MTC. The Court of Appeals
explained thus —
The cause of action embodied in the respondents' complaint is
that the petitioner occupied the land in question only by tolerance of
their mother and, after her death, by their own tolerance. Article 537 of
the New Civil Code provides that —
"Acts merely tolerated, and those executed clandestinely
and without the knowledge of the possessor of a thing, or by
violence, do not affect possession".
DCAHcT

Tolentino explains the concept of tolerance under the said article

thus: —
"Acts merely tolerated are those which by reason of
neighborliness or familiarity, the owner of property allows his
neighbor or another person to do on the property; they are
generally those particular services or benefits which one's
property can give to another without material injury or prejudice
to the owner, who permits them out of friendship or courtesy.
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 They are acts of little disturbances which a person, in the interest
of neighborliness or friendly relations, permits others to do on his
property, such as passing over the land, tying a horse therein, or
getting some water from the well. Although this is continued for
a long time, no right will be acquired by prescription.
There is tacit consent of the possessor to the acts which
are merely tolerated. Thus, not every case of knowledge and
silence on the part of the possessor can be considered mere
tolerance. By virtue of tolerance that is considered as an
authorization, permission or license, act of possession are
realized and performed. The question reduces itself to the
existence or non-existence of permission.
It is difficult to draw a dividing line between tolerance of
the owner and abandonment of his rights when the acts of the
possessor are repeated, specially when the lapse of time has
consolidated and affirmed a relation the legality of the origin of
which can be doubted. When there is license or permission, the
proof of easy. It is for the court to decide in each case whether
there exists tolerance or an abandonment of right on the part of
the owner." (Tolentino, Civil Code of the Philippines, 1972 ed.,
Vol. 2, pp. 253-254)
In the instant case, the evidence of tolerance on the part of the
respondents consists of the affidavit of Luzviminda Go, which states,
among others, the following: —
"1. That I am one of the daughters of the late Lucila Go
who died on January 22, 1988; HCITDc

2. That sometime in 1964 I was made to accompany

my mother to visit a parcel of land which I know as the lot
subject of our ejectment case against one Aurora Perez;
3. That during that visit I saw a lone house there being
occupied by a certain 'Attorney' who I learned from my mother
that he was being allowed to stay there temporarily as we had no
immediate need yet of the premises as we were allowed free use
of a premises in Cubao, Quezon City belonging to a relative of
our grandfather;
4. That in early 1977 when I had another chance to visit
the subject premises, I saw for the first time the person of Aurora
Perez whom I came to know then as Baby Sansano residing at the
same house which earlier was being utilized as the residence of
the certain "Attorney";
5. That I heard from my mother that certain "Attorney"
was a relative of 'Aurora Perez.' TcDHSI

To our minds, this does not constitute sufficient evidence of

tolerance to the occupancy by the petitioner of the disputed lot. In the
first place, the knowledge of Luzviminda Go of such alleged tolerance
was derived from what her mother told her, hence, hearsay. In the
second place, the permission to stay on the lot was given only to a
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 certain "Attorney," and not to the petitioner herself, who was only
considered as a relative of the "Attorney".
In fact, the records of the pre-trial conference conducted by the
Metropolitan Trial Court on February 29, 1996 shows that the
respondents considered tolerance as equivalent to their mother's
failure to act to eject the petitioner from the land. Thus —
"Court:
O sige, okay. Who are the other plaintiffs? Ngayon, ayon sa
Nanay ninyo, pinayagan ba niyang magtayo ng bahay doon
si Aurora Perez?
Miss Go:
Hindi po.
Court:
Hindi niya pinayagan?
Miss Go:
Basta nakita na lamang po niya na nakatayo na yung bahay.
Court:

Yung bang ibang mga kapatid, ganon din ba and sinasabi?

Sino ang iba pang mga kapatid? Pinayagan ba ng Nanay
ninyo na magtayo ng bahay si Aurora Perez?
Answer:

Hindi po.
Court:
Yun din ba ang sagot ng ibang mga kapatid?
Answer:
Opo, hindi po.
Court:
Hindi pinayagan ang ibig sabihin. There is no tolerance
there, Attorney.
Atty. Soriano:
May we comment Your Honor?
Court:
Teka muna .
Atty. Solidum:
I was made to understand that at the time the mother was
still living, in a way, she tolerated the stay of the
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 defendants when she did not at the time take steps to have
the defendant ejected from the premises, and from that,
the late Mrs. Go tolerated the stay of the defendants in the
premises." (t.s.n., pp. 5-7, Feb. 29, 1996).
CSaIAc

The participants above knew what they were talking about, the
possession of the lot. It is idle to distinguish between the building of a
house and the occupancy of the lot, for a house cannot be built without
occupancy of the lot.

For that matter, if the "Miss Go" who appeared at the pre-trial
was the same person as Luzviminda Go who executed the affidavit
partially quoted above, her statement that her mother simply found the
petitioner's house standing on the lot in question, runs counter to her
statement in the affidavit that her mother tolerated the "Attorney's"
occupancy of a house on the said lot.
Consequently, we agree with the Metropolitan Trial Court that the
occupancy of the petitioner was not a matter of tolerance on the part of
the respondents. This is not to say that the petitioner is entitled to
remain in the subject land. It is only that the respondents can no
longer avail of the remedy of forcible entry or unlawful detainer.
However, they may still bring the other appropriate vindicatory
actions. That is why the Metropolitan Trial Court dismissed their
complaint without prejudice."

Hence, the present petition, where petitioners assign for resolution the
main issue of: "whether an ejectment action is the appropriate judicial
remedy for the recovery of possession of subject property in the instant case
or whether a 'vindicatory action' is the proper remedy for such recovery";
with the following subsidiary issues: 1. whether the instant action for
ejectment was commenced within the jurisdictional one year period provided
for in Section 1, Rule 70 of the Rules of Court; 2. whether private
respondent's occupancy of the property in controversy, prior to the demand
to vacate, was by mere tolerance of petitioners' mother and by their own
tolerance; 3. whether the Court of Appeals properly applied the hearsay rule
in rejecting the submission that private respondent's occupancy was merely
tolerated; 4. whether or not petitioners' certificate of title may be collaterally
attacked; 5. whether private respondent can validly claim reimbursement for
her alleged expenses on improvements made on the subject property; and,
6. whether petitioners are entitled to reasonable compensation for the use
and occupancy of subject property by the private respondent.
The Court finds no cogent reason to disturb the findings and
conclusions of the Court of Appeals in its questioned decision.
Ejectment cases are summary proceedings intended to provide an
expeditious means of protecting actual possession or right of possession of
property. Title is not involved, that is why it is a special civil action with a
special procedure. 5 The only issue to be resolved in ejectment cases is the
question as to who is entitled to the physical or material possession of the
premises or possession de facto. 6 The summary actions for forcible entry
and unlawful detainer are distinguished from each other as follows:
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 "Forcible entry and unlawful detainer cases are two distinct
actions defined in Section 1, Rule 70 of the Rules of Court. In forcible
entry, one is deprived of physical possession of land or building by
means of force, intimidation, threat, strategy, or stealth. In unlawful
detainer, one unlawfully withholds possession thereof after the
expiration or termination of his right to hold possession under any
contract, express or implied. In forcible entry, the possession is illegal
from the beginning and the basic inquiry centers on who has the prior
possession de facto. In unlawful detainer, the possession was originally
lawful but became unlawful by the expiration or termination of the
right to possess, hence the issue of rightful possession is decisive for,
in such action, the defendant is in actual possession and the plaintiff's
cause of action is the termination of the defendant's right to continue
in possession."
"What determines the cause of action is the nature of
defendant's entry into the land. If the entry is illegal, then the action
which may be filed against the intruder within one year therefrom is
forcible entry. If, on the other hand, the entry is legal but the
possession thereafter became illegal, the case is one of unlawful
detainer which must be filed within one year from the date of the last
demand." 7

The complaint subject of this case was captioned as "ejectment." From

a reading of the allegations of the complaint quoted above, we find that the
action is one for unlawful detainer. Petitioners alleged in their complaint that
they inherited the property registered under TCT No. C-32110 from their
parents; that possession thereof by private respondent was by tolerance of
their mother, and after her death, by their own tolerance; and that they had
served written demand on December, 1994, but that private respondent
refused to vacate the property. According to them, they availed of the
appropriate judicial remedy pursuant to Section I, Rule 70 of the Revised
Rules of Court and that the complaint which was filed on June 27, 1995, was
filed within one year from date of the demand to vacate on December, 1994.
It is settled that one whose stay is merely tolerated becomes a
deforciant illegally occupying the land the moment he is required to leave. 8
It is essential in unlawful detainer cases of this kind, that the plaintiff's
supposed acts of tolerance must have been present right from the start of
the possession which is later sought to be recovered. 9 This is where
petitioners' cause of action fails. The appellate court, in full agreement with
the MTC made the conclusion that the alleged tolerance by their mother and
after her death, by them, was unsubstantiated. On this point, we defer to the
findings of the MTC as affirmed by the Court of Appeals. The Supreme Court
does not review findings of facts by the Court of Appeals unless the findings
of the appellate court are mistaken, absurd, speculative, conjectural,
conflicting, tainted with grave abuse of discretion, or contrary to the findings
culled by the trial court of origin. 10 Here, we find no infirmity or anything
reversible in the aforesaid findings arrived at by both the MTC and the Court
of Appeals.
The evidence revealed that the possession of defendant was illegal at
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 the inception and not merely tolerated as alleged in the complaint,
considering that defendant started to occupy the subject lot and then built a
house thereon without the permission and consent of petitioners and before
them, their mother. Per the affidavit of Luzviminda Go, she saw the
defendant for the first time in the subject lot in 1977 residing at the same
house which was previously used by a certain "Attorney" who was allegedly
allowed by her mother to stay thereat. During the pre-trial conference,
petitioner Ms. Go confirmed that their mother did not allow defendant to stay
in the subject lot and that they just saw the house of defendant standing
thereon. Clearly, defendant's entry into the land was effected clandestinely,
without the knowledge of the owners, consequently, it is categorized as
possession by stealth 11 which is forcible entry. As explained in Sarona vs.
Villegas, cited in Muñoz vs. Court of Appeals 12 tolerance must be present
right from the start of possession sought to be recovered, to categorize a
cause of action as one of unlawful detainer not of forcible entry, to wit:
"But will this rule as to tolerance hold true in a case where there
was forcible entry at the start, but the lawful possessor did not attempt
to oust the intruder for over one year, and only thereafter filed forcible
entry suit following demand to vacate?

xxx xxx xxx.

A close assessment of the law and the concept of the word
'tolerance' confirms our view heretofore expressed that such tolerance
must be present right from the start of possession sought to be
recovered, to categorize a cause of action as one of unlawful detainer
not of forcible entry. Indeed, to hold otherwise would espouse a
dangerous doctrine. And for two reasons. First. Forcible entry into the
land is an open challenge to the right of the possessor. Violation of that
right authorizes the speedy redress — in the inferior court — provided
for in the rules. If one year from the forcible entry is allowed to lapse
before suit is filed, then the remedy ceases to be speedy; and the
possessor is deemed to have waived his right to seek relief in the
inferior court. Second, if a forcible entry action in the inferior court is
allowed after the lapse of a number of years, then the result may well
be that no action for forcible entry can really prescribe. No matter how
long such defendant is in physical possession, plaintiff will merely
make a demand, bring suit in the inferior court — upon a plea of
tolerance to prevent prescription to set in — and summarily throw him
out of the land. Such a conclusion is unreasonable. Especially if we
bear in mind the postulates that proceedings of forcible entry and
unlawful detainer are summary in nature, and that the one year time
bar to suit is but in pursuance of the summary nature of the action.

It is well to remember that after the lapse of the one year period,
suit must be started in the Court of First Instance in an accion
publiciana."
The RTC erred in treating the complaint as a case of forcible entry and
ruling in favor of petitioners since there was no allegation and proof of prior
physical possession by the petitioners. In forcible entry, the complaint must
allege that one in physical possession of a land or building has been
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 deprived of that possession by another through force, intimidation, threat,
strategy or stealth. Moreover, the action should be brought with in one year
from date of forcible entry. In the case at bar, petitioners came to know that
defendant was occupying the subject land way back in 1977, but filed the
case only in 1995.
We agree with the Court of Appeals that if petitioners are indeed the
owners of the subject lot and were unlawfully deprived of the real right of
possession, they should present their claim before the regional trial court in
a n accion publiciana or an accion reivindicatoria, and not before the
metropolitan trial court in a summary proceeding of unlawful detainer or
forcible entry. For even if one is the owner of the property, the possession
thereof cannot be wrested from another who had been in the physical or
material possession of the same for more than one year by resorting to a
summary action for ejectment." 13 In view of the foregoing, it is unnecessary
to pass upon the other issues raised in the petition at bar.
WHEREFORE, the petition is DENIED and the judgment of the Court of
Appeals is hereby AFFIRMED.
SO ORDERED.
Melo, Vitug, Panganiban and Sandoval-Gutierrez, JJ., concur.

Footnotes
1. Penned by Justice Hector L. Hofileña with the concurrence of Justices Jorge S.
Imperial and Omar U. Amin.

2. Original Records, pp. 1-3.

3. Ibid., pp. 12-16.
4. Rollo , p. 88.
5. Guballa vs. Court of Appeals, 168 SCRA 518 (1988).
6. University Physicians Services, Inc. vs. Court of Appeals , 233 SCRA 86
(1994).

7. Sarmiento vs. Court of Appeals, 250 SCRA 108 (1995).

8. Odsigue vs. Court of Appeals, 233 SCRA 626 (1994).
9. Ibid., p. 116.
10. Ramirez vs. Court of Appeals, 294 SCRA 512 (1998).
11. Art. 537, Civil Code of the Philippines:

Art. 537. Acts merely tolerated, and those executed clandestinely and
without the knowledge of the possessor of a thing, or by violence do not
affect possession.

12. 224 SCRA 216 (1992).

13. Sarmiento case , supra.
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