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2026 Supreme(Bom) 60
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
N.J.JAMADAR, J.
Ganesh D Tapkir - Appellant
Vs.
Baner Yethil, Samasta Gramastha Mandal Baner, Through it’s Representatives - Respondent
Writ Petition No. 16288 of 2025
Decided On : 01-04-2026
Advocate Appeared:
For the Appellant :Mr. Anil Anturkar, Senior Advocate, Atharva Date, Kashish Chellani, Minal Chandnani, i/b Hemanth Ghadigaonkar
For the Respondent: Mr. Avinash Bhuskute, Adv R.S. Khadapkar
Customary rights for community over land exist in gross, distinct from easements appurtenant to dominant tenement; prima facie proof of ancient, continuous, certain, reasonable usage via non-traverse and relevant evidence justifies interim injunction.
Headnote:(A) Indian Easements Act, 1882 - Sections 2(b), 4 and 18 - Distinction between customary easement and customary right - Easement is appurtenant to dominant tenement for its beneficial enjoyment and cannot exist for indeterminate fluctuating body like villagers; customary right exists in gross for community over immovable property, not governed by Act - Evidence Act, 1872 - Sections 13 and 48 - Sale deed description recognizing usage and affidavits of persons likely to know custom relevant for prima facie existence. (Paras 14-18, 27-28)
(B) Custom - Essentials: ancient or from time immemorial, regular continuous, certain not varied, reasonable - Long usage indispensable; 'time immemorial' when commencement beyond memory of man or shrouded in antiquity - Non-traverse of plaint averments in interim reply constitutes admission for prima facie finding. (Paras 19-25)
(C) Constitution of India - Article 227 - Supervisory jurisdiction limited; not appellate - Interference only for jurisdictional error, perversity, patent illegality; cannot re-appreciate evidence or convert into appeal in disguise. (Paras 32-33)
Facts of the case:
Representative suit by villagers for declaration of customary right to celebrate annual festival on open 10R land before temple; prior owners kept open, described in old sale deed; recent purchasers started excavation, erected structures; interim and mandatory injunction granted by trial court to prevent obstruction and restore status quo, affirmed by district judge; writ petition challenging orders.
Findings of Court:
Petition dismissed; no perversity in lower courts' discretion; suit hearing expedited.
Issues: Whether claim is customary easement or customary right; sufficiency of prima facie material for custom's existence including non-traverse, sale deed, affidavits, photos; scope of interference under supervisory jurisdiction.
Ratio Decidendi: Claim asserts community customary right in gross over land for festival, distinct from easement; prima facie case made by unchallenged averments of ancient continuous usage, supporting material; balance of convenience and irreparable injury favour protection; no jurisdictional error warranting interference.
Result: Petition dismissed.
| Table of Content |
|---|
| 1. villagers' customary right to bagad festival on suit land. (Para 3) |
| 2. no pleadings or proof of customary easement. (Para 5 , 6 , 7) |
| 3. custom proven by non-traverse and documents. (Para 8 , 9 , 10) |
| 4. customary rights in gross differ from easements. (Para 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18) |
| 5. custom needs antiquity, continuity, certainty, reasonableness. (Para 19 , 20 , 21) |
| 6. non-traverse admits long usage of custom. (Para 22 , 23 , 24 , 25) |
| 7. documents and site support prima facie custom. (Para 26 , 27 , 28 , 29 , 30 , 31) |
| 8. article 227 supervisory, not appellate jurisdiction. (Para 32 , 33) |
| 9. dismiss petition; expedite suit hearing. (Para 34 , 35 , 36 , 37) |
JUDGMENT :
N. J. JAMADAR, J.
1. Rule. Rule made returnable forthwith and, with the consent of the learned Counsel for the parties, heard finally.
2. By this Petition under Article 227 of the Constitution of India, the Petitioners-original Defendant Nos. 1 and 2, take exception to a judgment and order dated 3rd April 2025 passed by the learned District Judge, Pune in MCA No. 101 of 2024, whereby the said Appeal preferred by the Petitioners against an order dated 22nd April 2024 passed by the learned Civil Judge, P.M.C. Court, Pune, thereby granting injunction, came to be dismissed by affirming the order passed by the trial Court.
3. Shorn of unnecessary details the background facts can be stated as under:
3.1 A representative suit came to be instituted by an organization of villagers of Baner, styled, “Baner Yethil Samastha Gramastha Mandal” through Respondent Nos. 1 to 10, seeking a declaration that the villagers of Baner have a customary right to celebrate Bagad festival on the occasion of “Hanuman Jayanti”, and to restrain the Petitioners- Defendant Nos. 1 and 2 from causing obstruction in any manner whatsoever in the celebration of the said festival which has been celebrated in accordance with the traditions since ancient times.
3.2 The substance of the claim of the Plaintiff was that “Shree Bhairavnath” is the village deity of Baner; which has been included in the Pune Municipal Corporation in the year 1997. Shree Bhairavnath Temple is located in “Gaothan” of village Baner. Another temple of Bhairavnath known as “Shree Bhairavnath Paduka Mandir” is situated at Survey No. 288. Since time immemorial every year, on the occasion of Hanuman Jayanti, a festival styled, “Bagad” is celebrated on the land admeasuring 10 R situated in front of “Shree Bhairavnath Paduka Mandir” temple. The said 10 R land is the suit property.
3.3 The Plaintiff asserts that for the said Bagad festival 2000-3000 devotees assemble in the suit property. A ritual of moving the Bagad which is like a chariot mounted on a bullock-cart is performed for over an hour. The said festival has been celebrated since 400-500 years. The villagers had erected a fencing to earmark the suit property, out of the funds raised from the villagers.
3.4 Murkute family was the holder of the larger land of which the temple and the suit property form part. Murkute family had kept the suit property open to facilitate the celebration of annual Bagad festival. In the year 1967 Bhau Murkute and others sold the land bearing Survey No. 288 to Ratnakar Bharvirkar. The description of the property conveyed thereunder clearly indicates that the suit property was earmarked for the Bagad festival.
3.5 As Defendant Nos. 1 and 2 attempted to remove the fencing around the suit property, the villagers resisted the said effort. In the enquiries that followed, it transpired that under a registered Sale Deed dated 24th August 1987, Bharvirkar had sold the larger land to M/s Mankanis Builders Developers Private Limited (“M/s Mankanis Builders”). Subsequently, under a Sale Deed dated 24th February 2022, M/s Mankanis Builders transferred suit property in favour of Defendant Nos. 1 and 2.
3.6 The Plaintiffs claim the boundaries of the property, sold under the said Sale Deeds of 1987 and 2022, were incorrectly shown with a malafide intent.
