( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO. 38 OF 2009 WITH CIVIL APPLICATION NO. 4725 OF 2009 Krushna s/o. Shivaji Gawali .. Appellant Versus Jayshri w/o. Jeevan Gawali and ors. .. Respondents Shri Ajit S. Zarekar, Advocate for the appellant. Shri N.V. Gaware, Advocate for respondent Nos. 1 to 3. Shri H.U. Dhage, Advocate for respondent Nos. 5,6,7a to 7c. CORAM : P.R. BORKAR,J. DATED : 01.09.2009 P.C. :- 1. Heard Shri Ajit Zarekar, Advocate for the appellant, Shri N.V. Gaware, Advocate for respondent Nos.1 to 3 and Shri H.U. Dhage for respondent Nos. 5,6,7a to 7c. This appeal from order is directed against the order passed by the learned III Jt. Civil Judge, Senior Division, Ahmednagar, below application Exh.41 in Special Civil Suit No. 9 of 2007, whereby the defendants were temporarily restrained pending ( 2 ) the suit from carrying out any new construction or changing the nature of the suit property. 2. Briefly stated, it is case of respondent Nos. 1 to 3, who are original plaintiffs that they are heirs of Jeevan Gawali, who was one of the four sons of respondent No.4 Shivaji, who is since dead. Shivaji has daughter by name Mangala and he is also survived by widow Indubai. The suit is filed for partition and separate possession of ancestral property which is in all 1 H 17 R land, situated at Wakodi, Tal. Ahmednagar, Dist. Ahmednagar. 3. Present appellant and respondent Nos. 6 and 7a to 7c came with a case that for legal necessity Shivaji sold the property and therefore present appellant, respondent No. 6 & deceased Sham, who is now represented by respondent Nos. 7a to 7c, purchased property for Rs. 33,80,000/- by sale deed dated 26.10.2006 from Shivaji. According to them, it was for legal necessity and therefore binding on plaintiffs/ respondent Nos. 1 to 3. 4. The Trial Court has considered the evidence and ( 3 ) observed that legal necessity will have to be proved and there is prima facie case for grant of temporary injunction. Therefore, the Trial Court was pleased to grant injunction as prayed. 5. During arguments before this Court Adv. Shri Zarekar for the appellant stated that total property is 1 H 17 R and the appellant wants to make construction only in 1.5 R area. The plaintiffs/respondent Nos. 1 to 3 together claimed 1/6th share. Under the circumstances, at the most 19.5 R area may be allotted to their share and there would not be any harm if the appellant was allowed to make construction in 1.5 R land. It may be noted that this is a new case which is canvassed before this Court. It does not appear that plan of proposed construction in 1.5 R area along with estimate is produced before the Trial Court. It also does not appear that the construction permission of local authority was taken. So, new case is being made out. 6. In the circumstances, in my opinion, this appeal from order will have to be disposed of with liberty to the appellant to make fresh application to the Trial Court with ( 4 ) specific case as to in how much area at present there is construction; what construction the present appellant proposes to make and then he shall give all the details and shall make fresh application to the Trial Court. With this direction the Appeal From Order is disposed of. 7. In view of disposal of this appeal from order, Civil Application No. 4725 of 2009 does not survive. The Civil Application also stands disposed of. [P.R. BORKAR,J.] snk/2009/SEP09/ao38.09