JUDGMENT 1. - This C.M.A. under Section 104 read with Order 43 rule I CPC has been directed against the order dated-16.11.1992, passed by Additional District Judge No. 5, Jaipur City, Jaipur, by which the said Court allowed the application for temporary injunction filed by defendant Vishnu Gopal and restrained the appellant and its members from raising any constructions on the lands bearing Khasra Nos. 203 to 207 and Khasra No. 39/154 and from dispossessing defendant Vishnu Gopal and other defendants who agreed to sale their lands. 2. Brief relevant facts of the case are that on 27.5.1982, appellant filed a suit for specific performance of an agreement to sell. In that suit the defendants did not file any written statement as yet. On 28.10.1992, the defendant- respondent Vishnu Gopal filed an application under Order 39 Rule 1 and 2 CPC with the allegations that the disputed lands belong to him and his family; that it was agreed that the purchaser will only level the lands and make demarcation but will get actual possession of the aforesaid lands on payment of the full amount of sale; that as the purchaser did not pay the amount as such the defendant Vishnu Gopal is in possession of the disputed lands and has been cultivating the same. 3. The appellant submitted reply of the said application mentioning therein that the full price of the lands has been paid to the vendors; that the Additional Collector Land Conversion, Jaipur (West), vide his order dated 31.10.1988, has converted the lands as Abadi lands; that the appellant Samiti after dividing the lands into plots, allotted the plots to its members; that the members of the appellant Samiti are in actual possession of their plots and have raised construction after taking permission from J.D.A. and further that the relief claimed in the application by respondent - Vishnu Gopal neither arose from the plaintiff's cause of action nor is incidental and as such the application for injunction deserves to be dismissed on this ground also. The learned Judge restrained the appellant and also its members from raising any constructions over the lands bearing Khasra Nos. 203 to 207 and 39/154 and from dispossessing the defendants Nos. 1 to 6 from the aforesaid lands. Being aggrieved with the said order the plaintiff- appellant has filed the present appeal. 4. The learned Judge restrained the appellant and also its members from raising any constructions over the lands bearing Khasra Nos. 203 to 207 and 39/154 and from dispossessing the defendants Nos. 1 to 6 from the aforesaid lands. Being aggrieved with the said order the plaintiff- appellant has filed the present appeal. 4. Counsel for the appellant submits that the learned Judge over-looked documentary evidence on the record which goes to prove that the members of the appellant Samiti are in possession of the disputed lands. He submits that from the order of Additional Collector, (Land Conversion) Jaipur, dated 31.10.1985, it is apparent that members of the appellant Samiti are in actual possession of the disputed lands. The lands were already converted into abadi land. Lease deeds have also been executed and registered in the names of the members of the appellant Samiti under rule 16 of the Rajasthan Land Revenue (Allotment, Conversion and Regularisation of Agricultural Land for Residential and Commercial Purposes in Urban Areas (Rules) 1981. From the report of the Commissioner also it is apparent that the members of the appellant Samiti are in actual possession of the plots which were allotted to them by the appellant Samiti. The appellant Samiti has further proved from the receipts given by Vishnu Gopal defendant-applicant that whole purchase price of lands was paid to the vendors. Vishnu Gopal applicant was Khatedar of only a portion of the disputed lands. The other co-sharers of the disputed lands neither filed any injunction application nor supported the application filed by Vishnu Gopal. It has been further submitted that the learned Additional Distt. Judge had no jurisdiction to restrain the members of the appellant Samiti to raise constructions on the plots allotted to them as they were not parties in the application. The order of the learned Judge is perverse and deserves to be set-aside. 5. On the other hand, counsel for Vishnu Gopal submits that lands have not been mutuated in the name of appellant Samiti. The respondent Vishnu Gopal is Khatedar of the disputed lands. Full sale price of the lands has not been paid to be defendants. There was no agreement with the appellant for sale of the disputed lands and as such the suit of the appellant Samiti for specific performance of the agreement is not maintainable. The respondent Vishnu Gopal is Khatedar of the disputed lands. Full sale price of the lands has not been paid to be defendants. There was no agreement with the appellant for sale of the disputed lands and as such the suit of the appellant Samiti for specific performance of the agreement is not maintainable. The respondent Vishnu Gopal and other defendants are in possession of the disputed lands. The learned Judge did not commit any error of law or fact in passing the impugned orders and as such the appeal is not maintainable. 6. I have heard counsel for the parties and gone through the order passed by learned Judge and also the record. 7. From the agreement dated August 1975, it appears that out of 55 Bighas and 8 Biswas land agreed to be sold to defendant No. 7, the applicant Vishnu Gopal, his son and his mother had only 17 Bighas and 7 Biswas land. The applicant Vishnu Gopal was not Khatedar of entire disputed land. It is also apparent from the photo copies of the receipts produced by the appellant Samiti, that from time to time it paid various amounts to Vishnu Gopal against the aforesaid agreement. Even for the sake of arguments, it be taken that the amount paid to Vishnu Gopal was not full price of the lands agreed to be sold, still Vishnu Gopal was not entitled to any injunction as he had only ⅓rd share out of 17 Bighas and 7 Biswas of land. Further more, the payment of the land price may be relevant for deciding the suit but the same is not relevant for deciding the T.I. application which was filed by defendant Vishnu Gopal. The learned Judge erred in holding that the appellant Samiti failed to prove that it received possession of the entire lands. Firstly the finding is vague and secondly the same is perverse and contrary to record. From the report of the Commissioner, it is apparent that the entire disputed lands were divided into plots. The plots were allotted by the appellant Samiti to its members who are in possession of their plots. This fact has been confirmed from the order of Additional Collector (Land Conversion) dated 31.10.1985. From the report of the Commissioner, it is apparent that the entire disputed lands were divided into plots. The plots were allotted by the appellant Samiti to its members who are in possession of their plots. This fact has been confirmed from the order of Additional Collector (Land Conversion) dated 31.10.1985. The relevant portion of the order reads as below : " jktLFkku Hkw&jktLo vf/kfu;e dh /kkjk 90, ds izko/kkuksa dk mYya?ku djus ds djk.k fuekZ.k uxj& " bZ " ;kstuk dh d`f"k Hkwfe rglhynkj t;iqj ds vkns'k fnukad 15-10-84 ds rgr jkT; ljdkj esa fufgr gks pqdh gSA vr% jktLo ( xzqi&4 ) ds vkns'k dzekad 6@87@jktLo@4@84@ fnukad 1-9-84 ds iSjk 4 }kjk iznRr 'kfDr;ksa ds vuqlj.k esa fopkjk/khu ;kstuk ds Hkw[k.Mksa ij dkfct Hkw[k.M/kkfj;ksa dks ifjf'k"V " , " ds vuqlkj lkekU; :ikUrj.k 'kqYd tks bl ds fy;s 7-50 :i;s izfr oxZxt dh dher ij vkoafVr dh tkrh gSA bl ij iM+us okys izHkkjksa dh jkf'k lfefr@lnL;ksa }kjk ns; gksxhA " 8. It is true that the order dated 31.10.1995, is an interim order and final order is to be passed after the conditions mentioned in the orders dated 1 5.7.1983 and 25.1.1985, are complied with but no final order different from the order dated 31.10.85, has been produced before the Court by any of the parties. In the order dated 15.7.1983, interim sanction was granted converting 169 plots for residential purposes. From the order dated 31.10.1985, of the Additional Collector, Jaipur, it is apparent that the persons whose names are mentioned in Schedule A are in possession of the plots allotted to them by the appellant-Samiti. From this orders it is also apparent that the disputed lands have been vested in the Govt. by the order of the Tehsildar on the ground that the lands were used for non-agricultural purposes and further that the same were ordered to be allotted to the members of the appellant Samiti on payment of Rs. 0.75 prise per square yard. The argument of the counsel for the defendant Vishnu Gopal before the learned Judge on the application submitted by Smt. Madhu under Order I Rule 10 CPC was that the aforesaid order dated 31.10.1985, was under rule 10(4) of the aforesaid rules. 0.75 prise per square yard. The argument of the counsel for the defendant Vishnu Gopal before the learned Judge on the application submitted by Smt. Madhu under Order I Rule 10 CPC was that the aforesaid order dated 31.10.1985, was under rule 10(4) of the aforesaid rules. Under rule 10(4) of the rules an order in the interim nature can be passed in favour of an applicant only when the applicant is found in possession of the land. It is pertinent to note that not only the members of the appellant Samiti are in possession of their plots which were allotted to them by the Samiti but the Government has also issued registered lease deeds in favour of some of the members as is apparent from the record. Smt. Madhu has already been granted a lease-deed by the Govt. The orders granting lease-deed in favour of the members of the appellant-Samiti have not been challenged any where by the defendant respondent Vishnu Gopal. Further more the members of appellant Samiti, who are in on session of their plots can not be restrained from raising constructions as they are not parties in the suit or application for temporary injunction. This aspect has not been taken into consideration at all by the learned Judge while allowing the application of defendant applicant Vishnu Gopal. A period of more than 10 years has already been passed when the members of appellant Samiti purchased their plots from appellant Samiti. The learned Judge without considering the comparative mischief caused on account of granting or with holding injunction, restrained the appellant and it' members from raising constructions over the disputed lands on the ground that the appellant failed to prove as to how it would suffer irreparable loss in granting injunction. The learned Judge did not consider this aspect of the case that cost of building material and also cost of constructions is going high day to day and in case the members of appellant Samiti are restrained from raising constructions, they will suffer heavy irreparable loss. Further more the relief claimed by the applicant Vishnu Gopal (defendant appellant) in his application does not arise from the plaintiff's cause of action nor is incidental to it. 9. Looking to all these facts and circumstances of the case, in my opinion the order passed by the learned Judge is perverse and deserves to be set aside. 10. Further more the relief claimed by the applicant Vishnu Gopal (defendant appellant) in his application does not arise from the plaintiff's cause of action nor is incidental to it. 9. Looking to all these facts and circumstances of the case, in my opinion the order passed by the learned Judge is perverse and deserves to be set aside. 10. Consequently, I allow the appeal, set aside the order dated 16.11.1992, and dismiss the injunction application filed by respondent Vishnu Gopal. 11. Parties to bear their own costs.Appeal allowed. *******