The sale was registered in the RD but no partition was executed to subdivide the property after the sale. My aunt constructed a semi-concrete house on the portion of residential lot that was sold to her but she encroached a portion that belonged to my father. The encroachment was pointed out outright by my father but my aunt pleaded that she be allowed to use that portion of my father's land since the structure was made of wood and only the posts are concrete anyway. My father agreed on the condition that when the house of my aunt becomes totally concrete, she would turn over peacefully the encroached portion. Since the sale, every time any concrete structure of whatever use and size was attempted to be constructed on the encroached portion, we would prevent them from doing so and they become unsuccessful in their attempts. It took about 50 years since the sale when the heirs of my aunt afforded to build a totally concrete structure. It was at this time that a problem came about because when we prevented our cousins to build the concrete structure on the encroached portion, they completely ignored our demands despite heated arguments and eventually complaints made before the barangay. At present, a totally concrete structure stands on the encroached portion. The survey of our geodetic engineer indicated that my cousins encroached 211 sqaure meters following the deed of absolute sale that only the residential portion was sold. The survey of their geodetic engineer however indicated that the encroachment was only 33 square meters his survey included the fishpond portion of the OCT in determining the 1/6 that was sold in the deed of absolute sale. My cousins refused to get a third party geodetic engineer thus, no compromise was reached before the barangay. There is no dispute on the validity of the deed of absolute sale. The fishpond portion of the property as described in the OCT currently remain in its original physical state.
On June 29, 2011, we sent a written demand letter to my cousins demanding them to turn over to us the encroached portion peacefully with threat to file a legal action in court.
Now, we would like to know if the proper complaint should be ejectment or recovery of possession. Is it correct for the heirs of my aunt to claim that the sale included the fishpond portion? The deed of the absolute sale was clear and express on what was sold. We would appreciate your very kind and generous opinion on the matter. Thank you and best regards.