GONZAGA-REYES, J.: Korteä

This petition for review on certiorari under Rule 45 of the Rules of Court seeks to reverse the decision dated March 31, 1995 of the respondent Court of Appeals1 [Penned by Justice Jaime M. Lantin, concurred in by Justices Ma. Alicia Austria-Martinez and Bernardo LL. Salas.] in CA GR CV No. 38126, affirming with modification the decision of the Regional Trial Court, Branch 71, of Iba, Zambales,2 [Docketed as Civil Case No. RTC-354-I.] in an action by private respondent against petitioner for recovery of possession and ownership and rescission/annulment of donation.

The facts of the case as summarized by the respondent Court are as follows:3 [Rollo, pp. 33-35.] RtcÓ spped

On November 6, 1991, the Regional Trial Court, Branch 71, of Iba, Zambales rendered a decision, the dispositive portion of which reads as follows:4 [Records, pp. 209-210.]

Rodolfo Nocedo appealed to the respondent Court which affirmed the trial court as follows:5 [Rollo, p. 41.]

Dissatisfied, petitioner filed the instant petition for review with the following assignment of errors:6 [Rollo, pp. 11-12.]

The first issue raised refers to the actual area of the subject lot known as Lot 1121, which was registered under Tax Declaration No. 16-0032 under the name of the late Celestino Arbizo. Petitioner claims that Tax Declaration No. 16-0032 contains only an area of 29,845 sq. meter; thus the respondent Court exceeded its judicial authority when it sustained the lower court’s findings that the subject property actually contains an area of 127,289 square meters.

We find the argument unmeritorious. The records disclose that the trial court in an Order dated June 8, 1987 gave both parties to this case the chance to have the subject property re-surveyed by a licensed surveyor to determine the actual area of Lot 1121.7 [Records, p. 54.] Plaintiff Aurora Directo filed a motion/compliance where she suggested that Geodetic Engineer Edilberto V. Quejada of the Bureau of Lands, Iba, Zambales be commissioned to undertake the survey8 [Records, pp. 56-57.] said motion was also sent to defendant’s counsel, Atty. Eufracio Pagunuran for Comment,9 [Ibid, p. 59.] but Atty. Pagunuran however failed to file his Comment within the given period. Thus the trial court designated Engineer Quejada to undertake the survey of Lot 1121.10 [Ibid, p. 61.] Petitioner Noceda through counsel belatedly filed his Comment without any opposition to the appointment of Engineer Quejada but proposed that the latter be tasked to solely (a) re-survey, determine and identify the metes and bounds of the lot covered by Tax Declaration No. 16-0032; (b) to identify the areas occupied by the parties therein; and (c) to conduct the re-survey with notice and in the presence of the parties therein and their respective counsels.11 [Ibid, pp. 63-64.] The Comment was not, however, acted upon by the trial court in view of its earlier Order directing Engineer Quejada to undertake the survey of the land.12 [Ibid, p. 66.] Engr. Quejada conducted the survey with the conformity and in the presence of both parties, taking into consideration the extrajudicial partition dated August 17, 1981, deed of donation dated June 1, 1981 executed by plaintiff Aurora Directo in favor of defendant Rodolfo Noceda and the actual area occupied by the parties,13 [Ibid, p. 81, Exhibit "F".] as well as the sketch plan14 [TSN, November 14, 1988, pp. 2-3.] and the technical description of Lot 1121 taken from the Records Section of the Bureau of Lands, Manila.15 [Ibid, p. 4.] The report and the survey plan submitted by Engr. Quejada were approved by the Trial Court in an Order dated December 7, 1987.16 [Ibid, p. 87.] These circumstances show that the lower court ordered the re-survey of the lot to determine the actual area of Lot 1121 and such survey was done with the conformity and in the presence of both parties. The actual land area based on the survey plan which was conducted in the presence of both parties, showed a much bigger area than the area declared in the tax declaration but such differences are not uncommon as early tax declarations are, more often than not, based on approximation or estimation rather than on computation.17 [Director of Lands vs. Funtilar, 142 SCRA 57; Dolomite Mining Corporation vs. Montalbo, 217 SCRA 687.] We hold that the respondent court did not err in sustaining the trial court’s findings that the actual area of Lot 1121 is 127,289 square meters. Kycalrâ

Petitioner also contends that said judicial determination improperly encroaches on the rights and claims of third persons who were never impleaded below; that the subject lot was also declared in the name of one Cecilia Obispo and a Free Patent over the said lot was also issued in her name and that there are several residential houses constructed and existing on Lot 8 of lot 1121, thus these possessors/occupants of Lot 8 should be joined as defendants for their non-inclusion would be fatal to respondent’s cause of action.

We find no merit in this argument. The respondent Court correctly ratiocinated on this issue as follows:18 [Rollo, pp. 36-37.]

Notably, defendant’s counsel requested for the appearance of Cecilia Obispo and despite notice to her to appear in court and bring with her the alleged free patent in her name,19 [Records, p. 171.] she failed to appear and even failed to intervene to protect whatever interest and right she has over the subject lot. As to the other possessors of residential houses in Lot 8 of Lot 1121, they are not considered as indispensable parties to this case. A party is not indispensable to the suit if his interest in the controversy or subject matter is distinct and divisible from the interest of the other parties and will not necessarily be prejudiced by a judgment which does complete justice to the parties in court.20 [Servicewide Specialists, Inc. vs. CA, 251 SCRA 70.] Private respondent is not claiming the entire area of Lot 1121 but only a portion thereof which was adjudicated to her based on the August 17, 1981 extrajudicial settlement and which was denominated in the survey plan as Lot C of Lot 1121; thus there was no need to implead the occupants of Lot 8.

Petitioner further claims that the subject property could not be partitioned based on the extrajudicial settlement-partition dated August 17, 1981, since the distributive share of the heirs of the late Celestino Arbizo and the area of Lot 1121 stated therein were different from the extrajudicial settlement executed on June 1, 1981; that the discrepancies between the two deeds of partition with respect to the area of Lot 1121 and the respective share of the parties therein indicated that they never intended that any of the deeds to be the final determination of the portions of Lot 1121 allotted to them; that the extrajudicial settlement-partition of August 17, 1981 could not effectively subdivide Lot 1121 because it partitioned only 29,845 square meters, and not its actual area of 127,298 square meters. slxä mis

We see no cogent reason to disturb the findings of the respondent Court as follows:21 [Rollo, pp. 37-38.]

Although in the extrajudicial settlement dated August 17, 1981 the heirs of Celestino Arbizo partitioned only a 29,845 square meter lot to conform with the area declared under tax declaration 16-0032 yet the heirs were each actually occupying a bigger portion the total area of which exceeded 29,845 square meters. This was confirmed by Geodetic Engineer Quejada in his report submitted to the trial court where he stated among other things:22 [Exhibit "F", Records, p. 82.]

The survey conducted on Lot 1121 was only a confirmation of the actual areas being occupied by the heirs taking into account the percentage proportion adjudicated to each heir on the basis of their August 17, 1981 extrajudicial settlement.

Petitioner further alleges that the said partition tries to vest in favor of a third person, Maria Arbizo, a right over the said property notwithstanding the absence of evidence establishing that she is an heir of the late Celestino Arbizo since Maria Arbizo was never impleaded as a party in this case and her interest over Lot 1121 was not established.

Such contention deserves scant consideration. We find no compelling basis to disturb the finding of the trial court on this factual issue, as follows:23 [Records, p. 206.] Mesmä

We likewise find unmeritorious petitioner’s claim that there exist no factual and legal basis for the adjudication of Lot C of Lot 1121 to private respondent Aurora Directo. It bears stress that the relocation survey plan prepared by Geodetic Engineer Quejada was based on the extrajudicial settlement dated August 17, 1981, and the actual possession by the parties and the technical description of Lot 1121. It was established by the survey plan that based on the actual possession of the parties, and the extrajudicial settlement among the heirs the portion denominated as Lot C of Lot 1121 of the survey plan was being occupied by private respondent Aurora Directo and it was also shown that it is in Lot C where the 625 square meter area donated by private respondent Directo to petitioner is located. There is no obstacle to adjudicate Lot C to private respondent as her rightful share allotted to her in the extrajudicial settlement. Kyleä

Petitioner argues that he did not usurp the property of respondent Directo since, to date, the metes and bounds of the parcel of land left by their predecessor in interest, Celestino Arbizo, are still undetermined since no final determination as to the exact areas properly pertaining to the parties herein; hence they are still considered as co-owners thereof.

We do not agree.

In this case the source of co-ownership among the heirs was intestate succession. Where there are two or more heirs, the whole estate of the decedent is, before its partition, owned in common by such heirs subject to the payment of debts of the deceased.24 [Article 1078 of the Civil Code.] Partition, in general, is the separation, division and assignment of a thing held in common among those to whom it may belong.25 [Article 1079 of the Civil Code.] The purpose of partition is to put an end to co-ownership. It seeks a severance of the individual interest of each co-owner, vesting in each a sole estate in specific property and giving to each one a right to enjoy his estate without supervision or interference from the other.26 [Villamor vs. CA, 162 SCRA 574 citing Confesor vs. Pelayo, 111 Phil. 416.] And one way of effecting a partition of the decedent’s estate is by the heirs themselves extrajudicially. The heirs of the late Celestino Arbizo namely Maria Arbizo, Aurora A. Directo (private respondent) and Rodolfo Noceda (petitioner) entered into an extrajudicial settlement of the estate on August 17, 1981 and agreed to adjudicate among themselves the property left by their predecessor-in-interest in the following manner: ExÓ sm

In the survey plan submitted by Engineer Quejada, the portions indicated by red lines and numbered alphabetically were based on the percentage proportion in the extrajudicial settlement and the actual occupancy of each heir which resulted to these divisions as follows:28 [Rollo, p. 84, Exhibit "E".]

Thus, the areas allotted to each heir are now specifically delineated in the survey plan. There is no co-ownership where portion owned is concretely determined and identifiable, though not technically described, or that said portions are still embraced in one and the same certificate of title does not make said portions less determinable or identifiable, or distinguishable, one from the other, nor that dominion over each portion less exclusive, in their respective owners.29 [Dela Cruz vs. Cruz, 32 SCRA 307.] A partition legally made confers upon each heir the exclusive ownership of the property adjudicated to him.30 [Article 1091 of the Civil Code.] ScÓ lex

We also find unmeritorious petitioner’s argument that since there was no effective and real partition of the subject lot there exists no basis for the charge of usurpation and hence there is also no basis for finding ingratitude against him. It was established that petitioner Noceda occupied not only the portion donated to him by private respondent Aurora Arbizo-Directo but he also fenced the whole area of Lot C which belongs to private respondent Directo, thus petitioner’s act of occupying the portion pertaining to private respondent Directo without the latter’s knowledge and consent is an act of usurpation which is an offense against the property of the donor and considered as an act of ingratitude of a donee against the donor.31 [Art. 765. The donation may also be revoked at the instance of the donor, by reason of ingratitude in the following cases:

The law does not require conviction of the donee; it is enough that the offense be proved in the action for revocation.32 [Tolentino, Volume II, 1992 edition, p. 575, citing 7 Colin & Capitant 638.]

Finally, petitioner contends that granting revocation is proper, the right to enforce the same had already prescribed since as admitted by private respondent, petitioner usurped her property in the first week of September 1985 while the complaint for revocation was filed on September 16, 1986, thus more than one (1) year had passed from the alleged usurpation by petitioner of private respondent’s share in Lot 1121. We are not persuaded. The respondent Court rejected such argument in this wise: ScmisÓ

The action to revoke by reason of ingratitude prescribes within one (1) year to be counted from the time (a) the donor had knowledge of the fact; (b) provided that it was possible for him to bring the action. It is incumbent upon petitioner to show proof of the concurrence of these two conditions in order that the one (1) year period for bringing the action be considered to have already prescribed. No competent proof was adduced by petitioner to prove his allegation. In Civil Cases, the party having the burden of proof must establish his case by preponderance of evidence.33 [New Testament Church of God vs. CA, 246 SCRA 266; Sapuan vs. CA, 214 SCRA 701.] He who alleges a fact has the burden of proving it and a mere allegation is not evidence.34 [P.T. Cerna Corporation vs. CA, 221 SCRA 19.]MisÓ sc

Factual findings of the Court of Appeals, supported by substantial evidence on record are final and conclusive on the parties and carry even more weight when the Court of Appeals affirms the factual findings of the trial court;35 [Meneses vs. CA, 246 SCRA 162; Fortune Motors (Phils.) Corp. vs. CA, 267 SCRA 653.] for it is not the function of this Court to re-examine all over again the oral and documentary evidence submitted by the parties unless the findings of fact of the Court of Appeals are not supported by the evidence on record or the judgment is based on the misapprehension of facts.36 [Navarro vs. CA, 209 SCRA 613; Remalante vs. Tibe, et.al., 158 SCRA 138; Pantranco North Express Inc. vs. CA, 224 SCRA 477.] The jurisdiction of this court is thus limited to reviewing errors of law unless there is a showing that the findings complained of are totally devoid of support in the record or that they are so glaringly erroneous as to constitute serious abuse of discretion.37 [BA Finance Corporation vs. CA, 229 SCRA 566; Lim vs. CA, 158 SCRA 307; Samson vs. CA, 141 SCRA 194.] We find no such showing in this case.

We find that both the trial court and the respondent Court had carefully considered the questions of fact raised below and the respondent Court‘s conclusions are based on the evidence on record. No cogent reason exists for disturbing such findings.38 [Heirs of Jose Olviga vs. CA, 227 SCRA 330.] We also note that petitioner in this petition merely rehashed the same issues and arguments raised in the respondent Court in whose decision we find no reversible error. Clearly, petitioner failed to present any substantial argument to justify a reversal of the assailed decision.

WHEREFORE, the petition for review is hereby DENIED. Costs against appellant.

Melo (Chairman), Vitug, Panganiban, and Purisima, JJ., concur. 10/6/99 2:48 PM