The main legal point established in the judgment is that the Court passing the final decree must ensure the allotment of proportionate road frontage as specified in the preliminary decree and may issue directions to remove any obstructions hindering the same.

C.V. KARTHIKEYAN, J.

1. The second appeal had come up for admission and the second appeal was admitted and notice was ordered. However, the substantial questions of law were not formulated.

2. After hearing the learned counsel for the appellant, the following substantial question of law is formulated:

"When the preliminary decree provides allotment of proportionate road frontage, can the Court which passes final decree overlook the same and pass final decree?"

3. Heard Mr.Srikumaran Nair, learned counsel for the appellant and Mr.P.Selvaraj, learned counsel for the respondent.

4. The plaintiff is the appellant before this Court. The plaintiff had filed a suit O.S.No.600 of 1979 which came up for consideration before the Additional District Munsif Court, Kulithurai. The Additional District Munsif Court, after hearing both sides, granted decree of partition. Aggrieved by the same, A.S.No.106 of 1987 was filed before the Sub Court, Kulithurai. The Sub Court, Kulithurai also dismissed the applications and confirmed the order passed by the learned Additional District Munsif Court, Kulithurai.

5. The parties were provided with two plans during the final decree proceedings, by the Commissioner which have been marked as Ex.C5 and Ex.C6. Under the preliminary decree, the plaintiff was allotted 28 cents, the second defendants was allotted five cents, the third defendants was allotted six cents and the defendants 1 to 4 were allotted 28 cents. The Commissioner had expressed difficulty in allotting shares with proportionate road frontage since the entire road frontage had been covered with buildings put up by the defendants. Consequently, he prepared two plans. According to the first plan which is Ex.C5, Plot 'A' measuring 29.500 cents was allotted to the plaintiff, Plot 'B' measuring 5 cents was allotted to the second defendant, Plot 'C' measuring 6 cents was allotted to the third defendant and Plot 'D' measuring 29.500 cents was allotted to the defendants 4,5,6 and 7.

6. According to the second plan, which is Ex.C6, Plot 'A' measuring 29.500 cents was allotted to the plaintiffs, Plot 'B' having an area of five cents was allotted to the second defendant, Plot 'C' having an area of six cents was allotted to the third defendant and Plot 'D' having an area of 1.060 cents was allotted to the defendants 4, 5, 6 and 7.

7. The Court below have accepted Plan No.2, which is Ex.C6. But it is seen that Plan No.1 which is Ex.C5, would be more suitable for both the parties. The building to the west of the portion allotted to the second defendant, which was put up by the second defendant has to be removed. The plaintiff will get additional and proportionate road frontage. In the preliminary decree it was specifically stated that proportionate road frontage should be given in the final decree. By adopting Plan No.2 / Ex.C6, the plaintiff had been allotted with lesser road frontage. He would get a proportionate road frontage only, if Ex.C5 / Plan No.1 is adopted and the building said to have been put up by the second defendant west of his house is demolished. Even in the second report of the Advocate Commissioner, it is stated that the said building is a new construction. It has been specifically stated that it was constructed after the report dated 31.10.1984. The extended portion measures 12 links. Consequently, the judgment and decree of the trial Court and the first appellate Court are liable to be interfered with and accordingly, the same is set aside. The trial Court is directed to pass final decree in accordance with Plan No.1/Ex.C5 and issue directions to demolish the extended new construction to the west of the second defendant's plot measuring 15 links.

8. In the result, the second appeal is allowed. No costs.