Can we seek demolition of encroachment area without seeking ownership declaration in prayer?

You have stated that you have already filed a civil suit and as the defendant has not filed the written statement, hence the court has taken action recording that written statement not filed by defendant. 

Now you are asking opinion from this forum as to whether you can add additional prayers at the stage of evidence for demolition  as well as for declaration of title.

Before answering your question you should clarify that what is the nature of suit you have filed and what was the relief sought in the suit filed by you?

Basically your father was not having clear and marketable title on his name because he acquired the property by an unregistered document hence it is a defective title.

You have also stated that subsequently he constructed a house over the vacant land, if so, whether he obtained permission or approval from municipality or any competent authority for building construction plan?

If no approval for construction was obtained then the building constructed itself would be considered as an illegal structure and liable to be demolished if the authorities issue a legal notice and take legal aciton.

You have also stated that your father transferred the property to your name by a  gift deed, it is also not known if he had executed a registered gift deed or transferred the property by an unregistered gift deed, whatever, your father's title to the property is defective hence your title is also defective.

Now you say that your neighbor has encroached some portion of your property, in that case you have to prove that the encroached portion belongs to you by a substantial documentary evidence i.e., by a registered document on your father's name.

In the absence of any registered document on your father's name, in the civil suit, he should have prayed for declaration of title on his name on the basis of the unregistered sale deed and posession and enjoyment for over three decades and he should produce the said document besides utility bills and the revenue records on his name.  The subsequent prayer should be for mandatory injunction against the defendant to demolish the encroached portion and delivery of possession of the encroached portion of the property.

If that was not done, then you can file an amendment petiiton to amend the suit accordinly.

You can discuss in detail with your advocate and proceed as suggested 

Thank you for the reply kalaiselvan sir.

I got the property from my father in 2019 via registered gift deed.

Prayer sought in the suit is , 1 Declare that plaintiff is the owner of encroached area 

2 direct the defendants to remove the illegal encroachment made on plaintiff property.

3. permanent injunction restraining the defendants from making any further encroachment upon the suit property.

my only question is should we seek, ownership declaration or without that can we only seek for demolition of encroached area.

Thank you.

As stated in my previous reply I once again inform you that your title is defective because the transferor's title itself was defective.

An unregistered deed will not confer title on the buyer, but your father purchased the property by an unregistered sale deed which is in contravention to section 17 of The Registration act. 

Section 17 of the Registration Act, 1908, mandates the registration of certain documents related to immovable property. This section specifies which documents must be registered to be legally valid, ensuring transparency and preventing fraud in property transactions. 

At this stage, since you went to court with a suit for declaration of title over the encroached portion of your property and permanent injunction as well as direction to the defendant to remove the encroachment, if the court is asking you about the title document to prove your title to the entire property, then what will you do? Or if the court is asking you that how did you acquire this property or on what basis you want to declare the title to the encroached property, what will be your reply to court, in that case the court may dismiss the suit itself, which will reatly impact you not only financially but also loss of your time and energy.

If you had the title for the entire property by a registered sale deed, then there was no necessity for you to seek declaration of title to the encroached property, instead you would have filed a suit for manatory injunctionto demolish the illegal structure built on your property by encroaching the same.

Therefore it is advisable that you may discuss with your dvocate and file an amendment petition to amend the pleadings to claim title to the property on the basis of your long time possession and enjoyment to perfect the title by invoking law of adverse possession and you can file the supporting documents to prove your possession and enjoyment and also you can amend the prayer to declare the title over the entire property, mandatory injunction against the defendant to demolish the illegal structure put up on your land and for delivery of vacant possession of the encroached land. 

You were advised to discuss with your avocate at length and proceed as suggested, it seems that you did not discuss with your advocate at all.

Ok, thank you for the detailed explanation sir......

Purchase through an unregistered document is invalid and improper transfer of title (ownership) in the name of your father, accordingly your suit is void ab-initio.

Endorsement in khata and/or payment of property tax do not confer title in  the name of your father, consequently he (your father) has no right, interest, claim or title in the property. Accordingly gift of the property is illegal and invalid. 

However, you are stated to have been in unintrupped possession of the property, you (or your father) may claim adverse possession of the property.

It is better to consult and engage some other local prudent lawyer for analyses of facts / documents, professional advise and necessary proceeding, if you have lost faith in the lawyer engaged by you.

Thank you for the advice sir...Much appreciated.

You are welcome for your appreciations.