Smt. Sabnam Mukhia and Anr. vs Shri Nitesh Kumar Gupta and Ors.
- Court
- High Court of Sikkim
2026:SHC:78
CNR: SKHC01 000060 2026
THE HIGH COURT OF SIKKIM: GANGTOK
(Civil Extra-Ordinary Jurisdiction)
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SINGLE BENCH: THE HON’BLE MR. JUSTICE A. MUHAMED MUSTAQUE, CHIEF JUSTICE
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OP (C) No. 1 of 2026
1 . Smt. Sabnam Mukhia,
Daughter of Late Durga Prasad Mukhia,
Aged about 45 years
nd
Resident of 2 Street, M.G. Marg,
P.O & P.S-Jorethang, District Namchi,
Sikkim-737121.
2. Smt. Baby Mukhia,
D/o- Late Durga Prasad Mukhia,
Aged about 41 years,
SCS, Joint Secretary,
Women & Child Welfare Department,
Lumsey, Lingding Road,
Upper Tadong, District Gangtok,
Sikkim-737102
(Petitioner No.1 and 2) are substituted
as Defendants in the place of their father
Late Durga Prasad Mukhia as his legal
heirs) ... Petitioners
Versus
1. Shri Nitesh Kumar Gupta,
Son of Late Santosh Kumar Gupta,
2. Shri Karan Kumar Gupta,
Son of Late Santosh Kumar Gupta,
3. Smt. Kusum Devi Gupta,
Wife of Late Santosh Kumar Gupta,
All are residents of
M/s Jeewan Jyotee Medical Shop,
nd
2 Lane, Jorethang Bazaar,
2026:SHC:78
OP(C) No.01 of 2026
(Smt. Sabnam Mukhia and Anr. vs. Shri Nitesh Kumar Gupta and Ors.)
District Namchi
Sikkim-737121 ... Respondents
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Appearance:
Mr. N. Rai, Senior Advocate with Ms. Tara Devi Chettri, Ms. Pem
Lhamu Lepcha and Mr. Yozan Rai, Advocates for the Petitioners.
Ms. Sandhya Gupta and Ms. Siksha R. Rai, Advocates for the
Respondents.
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Date of Hearing : 09.07.2026
Date of Judgment : 09.07.2026
Date on which uploaded : 14.07.2026
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J U D G M E N T (ORAL)
(A. Muhamed Mustaque, C.J.)
This original petition arises under Article 227 of the
Constitution of India, challenging an order passed by the learned
Civil Judge, Jorethang Sub-Division, Namchi District, Sikkim in the
Title Suit No.02 of 2022 ( Nitesh Kumar Gupta & Ors. Vs. Durga Psd.
Mukhia & Ors. ). Respondents/Plaintiffs in the suit filed an application
under Section 151 of the Code of Civil Procedure, 1908 (CPC),
seeking permission to carry out urgent repairs and to construct a
temporary tin roof over the suit property. The Respondents/Plaintiffs
have sought the relief of declaration, cancellation of records of
rights, etc., as the main relief. It is a serious dispute in regard to
possession. The Petitioners/Defendants contend that they are in
possession of the suit property. The learned Civil Judge, Jorethang
Sub-Division, Namchi, Sikkim, allowed the prayer and permitted the
Respondents/Plaintiffs to construct a temporary tin roof over the suit
property.
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2026:SHC:78
OP(C) No.01 of 2026
(Smt. Sabnam Mukhia and Anr. vs. Shri Nitesh Kumar Gupta and Ors.)
2. The order, as it now stands, in fact amounts to an admission
that the Respondent/Plaintiffs are in possession. No doubt, such an
order could not have been passed by the learned Civil Judge,
Jorethang Sub-Division, Namchi District, Sikkim, without being a
concrete finding in regard to the decision, at least prima facie ,
regarding possession.
3. The defendants, who are the petitioners herein, submit that
there is absolutely no requirement to construct a tin roof over the
suit property and that the building does not require any repair(s).
4. The invocation of Section 151 of the CPC is warranted only in
extreme circumstances, and the Court cannot invoke it in a routine
manner to pass such an order. The intention behind such an order
appears to be to protect the suit property without unsettling the
claims of the parties regarding possession.
5. That be the case, the Court ought to have verified the facts to
ascertain whether the suit property required repairs or the
construction of a tin roof, as claimed by the Respondents/Plaintiffs.
6. It is appropriate that an Advocate Commissioner be appointed
to conduct an inspection and submit a report before the learned
Trial Court. If the Advocate Commissioner reports that such urgent
repair is required, the Respondents/Plaintiffs may carry out such
repairs. However, this shall not confer any right upon them to claim
possession. Possession is an issue to be decided by the Court in an
appropriate manner. This order is only to protect the suit property
while keeping the rights and interests of the parties intact.
7. Accordingly, the impugned order dated 11.05.2026 is set
aside and remanded for reconsideration.
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2026:SHC:78
OP(C) No.01 of 2026
(Smt. Sabnam Mukhia and Anr. vs. Shri Nitesh Kumar Gupta and Ors.)
8. The learned Trial Court may pass appropriate orders after
appointing an Advocate Commissioner for conducting local
inspection.
9. Learned Counsel for the Respondents/Plaintiffs submits that
they have no objection to the appointment of an Advocate
Commissioner and they will meet necessary expenses for that.
10. Accordingly, the matter shall be reconsidered by the learned
Trial Court after the Advocate Commissioner submits his/her report.
11. It is made clear that if any order is passed to carry out such
repair(s) or construction of tin roof, it shall be without prejudice to
the respective parties to claim possession over the suit property,
and that shall be decided by the learned Trial Court in accordance
with law.
12. With the above directions, the OP(C) No. 1 of 2026 stands
disposed of.
Justice A
Muhame
d
Mustaque
Digitally signed
by Justice A
Muhamed
Mustaque
Date: 2026.07.14
13:32:37 +05'30'
Chief Justice
Approved for Reporting: Yes/No
ami
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