JUDGMENT : SANJAY KUMAR DWIVEDI , J. 1. Heard Mr. Indrajit Sinha, learned counsel appearing for the petitioners, Mr. Chandrajit Mukherjee, learned counsel appearing for the O.P. Nos. 1 to 5 and 7 to 9 and Mr. N.P. Choudhary, learned counsel appearing for the O.P. Nos. 10 and 11. 2. This petition has been filed under Article 227 of the Constitution of India, wherein prayer has been made for setting aside the order dated 01.08.2024, passed in Civil Appeal No. 30 of 2023, by the learned Principal District Judge, Jamtara, whereby, the appeal filed by the petitioners has been dismissed and the learned appellate court has upheld the order dated 19.09.2023, passed in Original Suit No. 57 of 2023. Prayer is also made for setting aside the order dated 19.09.2023, passed in M.C.A. No. 41 of 2023 [arising out of Original Suit No. 57 of 2023] by the learned Civil Judge, (Sr. Div.)-I, Jamtara. 3. Mr. Indrajit Sinha, learned counsel appearing for the petitioners submits that Original Suit No. 57 of 2023 has been instituted for declaration of the right, title and interest and also for cancellation of the sale deed. He submits that the issue in the said suit is that one Atanu Nandan Tagore was the younger brother of the great Rabindra Nath Tagore. Atanu Nandan Tagore was married with Akshey Kumari Devi. Atanu Nandan Tagore though resident of proper Kolkata, but he has got properties in different places. The said Atanu Nandan Tagore died on 25.06.1914. Before his death Atanu Nandan Tagore has executed a Will which was presented for probate in the Hon'ble High Court at Kolkata and the said case is registered as Probate Case No. 1046 of 1920. As per the terms and condition of the said Will, Smt. Sarla Sundari Devi and Ashutos Bandhopadhyay were the Executants of the will. The matter was subsequently compromised and the Executants were Ordered by the Hon'ble High Court to hand over the entire estate of Late Atanu Nandan Tagore in favour of his widow Akshey Kumari Devi. As per the terms and condition of the said Will, Smt. Sarla Sundari Devi and Ashutos Bandhopadhyay were the Executants of the will. The matter was subsequently compromised and the Executants were Ordered by the Hon'ble High Court to hand over the entire estate of Late Atanu Nandan Tagore in favour of his widow Akshey Kumari Devi. He further submits that it was the desire of Late Atanu Nandan Tagore that some Temple be constructed in the name of his grandfather at Bishwanath Kashi Dham and a "Shivalinga" may be installed and a Temple may be created in the name of Sarda Sundari Devi, in view of that and in order to fulfill and complete the last wish of Atanu Nandan Tagore, his widow Smt. Akshey Kumari Devi has not adopted any one, rather to manage the properties as well as place of worships in different places has created a trust on 14 th December, 1934 through a Register deed and the said Askhey Kumari Devi had appointed her two younger brothers Haradhan Gangopadhyay alias Haradhan Bhattacharjee and Tarapada Gangopadhyay alias Tarapada Bhattacharjee as the trustee to look after the asset of her deceased husband and also appointed her two brothers as Shebait of the Debattar properties of all places. 4. Learned counsel appearing for the petitioners submits that in the Trust deed it was expressly mentioned that on her death, her two brothers will look after Shree Shree Shardey Sharshivalingajew and as Shebait her two brothers will look after the Debattar properties and the regular worship of the Shivalinga. It was also mentioned in the said instrument that on the death of the aforesaid two brothers of Askhey Kumari Devi, their legal heirs or descendants will continue as Shebait of the God / Goddess all through and the name of Late Askhey Kumari Devi has also been recorded in the Khatian. In these backgrounds, he submits that the suit was instituted, in which, a petition under Order- XXXIX Rules- 1 and 2 of the CPC was filed before the learned court and the learned court has been pleased to reject the same by the order dated 19.09.2023, which was appealed before the learned appellate court in Civil Appeal No. 30 of 2023 and the learned appellate court by the order dated 01.08.2024 has been pleased to reject the same. 5. 5. Learned counsel further submits that the occasion of filing the said petition has emerged that the opposite parties herein are tried to change the nature of the suit, as in the suit property, constructions are being made on behalf of opposite parties. He submits that prima facie case, balance of convenience and irreparable loss have already been shown before the learned court, in spite of that the learned courts have been pleased to reject the same, as such, both the orders may kindly be set aside. To buttress his argument, he relied in the case of Maharwal Khewaji Trust (Regd.) Faridkot, vs. Baldev Dass, AIR 2005 SC 104 and he refers para-10 of the said judgment, which reads as under:- “10. Be that as it may, Mr. Sachhar is right in contending that unless and untill a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, therefore, the respondent should be permitted to put the scheduled property to better use. We do not think in the facts and circumstances of this case, the lower appellate court and the High Court were justified in permitting the respondent to change the nature of property by putting up construction as also by permitting the alienation of the property, whatever may be the condition on which the same is done. In the event of the appellant's claim being found baseless ultimately, it is always open to the respondent to claim damages or, in an appropriate case, the court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, we think both the courts below, namely, the lower appellate court and the High Court erred in making the impugned orders. The said orders are set aside and the order of the trial court is restored.” 6. The said orders are set aside and the order of the trial court is restored.” 6. Relying on the above judgment, he submits that once the nature of the suit property will be changed, the petitioners will be put to irreparable loss, in view of that, both the impugned orders may kindly be set aside. 7. On the other hand, Mr. Chandrajit Mukherjee, learned counsel appearing for the O.P. Nos. 1 to 5 and 7 to 9 has opposed the prayer and submits that the learned trial court as well as the learned appellate court has given the cogent reason of rejecting the said petition. He submits that the materials have come before the court that the buildings were constructed 35 years, 53 years ago and some of them were constructed 12 years, 15 years and 10 years back and considering all these aspects, the learned court has passed the order. He further submits that the suit has been instituted in the year 2023, wherein the buildings were already existing earlier and the opposite parties are in possession of the said property. He also submits that no constructions are being made. He submits that the counter affidavit has been filed, wherein photographs have been attached, which clearly suggests that the buildings are already existing, prior to institution of the suit and at present no construction is being made. He then submits that even the prima facie case of stay has not been made out by the petitioners herein, in view of that the learned courts have rightly passed the order. 8. Mr. N.P. Choudhary, learned counsel appearing for the O.P. Nos. 10 and 11 has adopted the arguments of Mr. Mukherjee and submits that no constructions have been made on behalf of O.P. Nos. 10 and 11, who are the defendants in the original suit. 9. In view of the above submissions of the learned counsel appearing for the respective parties, it is well settled that a petition to be decided under Order-XXXIX Rules-1 and 2 CPC, the person, who is claiming the interim order, required to prove the prima facie case, the balance of convenience and irreparable loss will be caused, if the said prayer is not allowed. 10. 10. In para-9 of the judgment of the learned appellate court, it has come that the pleader commissioner has submitted his report that on plot No. 624, area 8 decimal over which, a temple has been constructed about 35 years ago, as stated by the villagers. On plot No. 623 is surrounded by boundary wall over which forest department has constructed three buildings and the said boundary was built about 95 years ago as stated by the villagers and first building was constructed 53 years ago, second building was constructed 12 years ago and third building as constructed 6 years ago. On which some trees were planted and key of the room were kept by the Forest Department. Plot No. 621 surrounded by three sides in which one well and 9 feet width and 185 feet long PCC road was constructed about 10 years ago and several trees were planted. It has been further disclosed that Plot No. 652 having an area of 02 decimal over which one toilet with Asbestos roof has been constructed about 14 years ago and 04 decimals of land some palash tree was grown and the said land is in possession of Smt. Pushpa Dubey wife of Anil Kumar Dubey. Plot no. 652 having an area of 04 decimals, over which, one building was constructed by Sanjay Kumar Gupta, who is O.P. No. 8 about 14 years ago. Likewise how the further constructions were made on the other plots have also been disclosed therein and all are about 14 years, 5 years, 6 years and more than 95 years and 53 years back, wherein the suit in question has only been instituted in the year 2023. 11. The photographs, annexed with the counter affidavit, suggests that the buildings in questions have already been existed and nothing has been disclosed in the petition, filed by the learned counsel appearing for the petitioners that now the constructions are going on and nature of the plots are being changed by the opposite parties. The learned court has further found that the defendants have been able to show their possession and their names mutated in the records of right and on the other hand, the petitioners/plaintiffs have miserably failed to produce any chit of paper to show their right, title, interest and possession over the suit land. The learned court has further found that the defendants have been able to show their possession and their names mutated in the records of right and on the other hand, the petitioners/plaintiffs have miserably failed to produce any chit of paper to show their right, title, interest and possession over the suit land. Even the plot number, area, in which, the allegedly the defendants encroached in the suit land have not been disclosed by the plaintiff/petitioners before the learned court and in that view of the matter, the learned court has passed the said order. 12. It is crystal clear that the petitioners themselves are not clear that on which plot, any construction is made and further no chit of paper has been produced about the right, title and interest before the learned court. 13. In view of the above facts, the learned courts have passed the orders, and this court finds that three ingredients of allowing the petition under Order-XXXIX, Rules-1 and 2 CPC is not made out and further this court has not found any illegality in the impugned orders. As such, this petition is dismissed. 14. Further the learned appellate court has observed that this order will not prejudice the interest of either of the parties, in view of that the trial will proceed in accordance with law and the parties are put at liberty to take all their endeavour for early disposal of the suit.