GANESH D. TAPKIR v. BANER YETHIL SAMASTA GRAMASTHA MANDAL THRO. REPRES.
Distinction Between Customary Rights and Customary Easements - High Court Refuses to Interfere Under Article 227 With Interim Injunction Protecting Immemorial Village Festival Traditions.
Court: Bombay High Court
Citation: 2026:BHC-AS:15517
Decision Date: 01-04-2026
List of Laws
Constitution of India, Article 227; The Indian Easements Act, 1882; The Indian Evidence Act, 1872; Customary Rights vs. Customary Easements; Civil Procedure Code, 1908 (Temporary Injunctions)
- Facts: The Respondents (Original Plaintiffs), representing the villagers of Baner, filed a representative suit seeking a declaration of their customary right to celebrate the annual "Bagad" festival on a specific 10 R plot of land (the suit property) situated in front of the Shree Bhairavnath Paduka Mandir. They alleged that this festival had been celebrated for 400-500 years. The Petitioners (Defendant Nos. 1 and 2) purchased the land in 2022 and began excavation and construction of iron structures, which the villagers claimed obstructed their traditional rituals. The trial court granted a temporary mandatory injunction directing the Defendants to remove the structures and restore status quo ante. This order was subsequently upheld by the District Court in appeal.
- Procedural Posture: The Petitioners approached the High Court of Bombay under Article 227 of the Constitution of India, challenging the order of the District Court which had dismissed their Miscellaneous Civil Appeal and affirmed the trial court’s grant of interim injunction.
- Issue: Whether the Plaintiffs had established a prima facie case for a customary right (as distinguished from a customary easement) to justify the grant of an interim injunction, and whether the High Court should interfere with the discretionary orders of the lower courts under its supervisory jurisdiction.
- Holding: No interference was warranted. The High Court dismissed the petition, affirming the interim injunction while expediting the main suit.
- Reasoning: The Court distinguished between "customary easements", which require a dominant and servient tenement under Section 4 of the Easements Act, and "customary rights", which are rights in gross belonging to a fluctuating body of persons (like villagers) and are saved by Section 2(b) of the Act. The Court noted that the Defendants' initial reply to the injunction application failed to specifically traverse (deny) the Plaintiffs' claims regarding the antiquity and continuous celebration of the festival. Furthermore, the Court found that a 1967 Sale Deed in the chain of title and affidavits from former co-owners provided sufficient prima facie evidence of the custom under Sections 13 and 48 of the Indian Evidence Act. Under Article 227, the High Court’s role is supervisory and not appellate; since there was no patent illegality or perversity in the lower courts' exercise of discretion, the findings stood.
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