Customary Right & Easement Materially Distinct: Bombay High Court Upholds Customary Right to Celebrate Bagad Festival In Baner Over Private Property Claims

The Court held that rights exercised by a community or body of persons by virtue of long-standing custom are "rights in gross" and do not require the existence of a dominant tenement to be legally enforceable. The Court observed that the presence of the “Shree Bhairavnath Paduka Mandir” is undisputed, and the suit property is located directly in front of it. It further noted that the land has remained open despite significant urban development in Baner, Pune, which may be a relevant factor in the final adjudication.

Justice N. J. Jamadar observed, “In the light of the aforesaid situation at the suit site and prima facie material to demonstrate the exercise of the customary right by the inhabitants of Baner; annually, the exercise of discretion by the Courts below cannot be said to be either perverse or in violation of the settled principles of law”.

Senior Advocate Anil Anturkar appeared for the petitioner and Advocate Avinash Bhuskute appeared for the respondent.

The dispute involved a representative suit filed by the "Baner Yethil Samastha Gramastha Mandal" against two private individuals who purchased land at Survey No. 288 in Baner, Pune. The villagers claimed that for 400 to 500 years, they had celebrated the Bagad festival on a specific 10 R portion of this land during Hanuman Jayanti.

Trouble began in 2022 when the new owners started excavation and erected iron structures, claiming the land was private property and that the festival had no nexus with their plot. The villagers sought an injunction to prevent obstruction and a mandatory order to restore the land's status-quo ante for the celebration.

The trial court in Pune initially granted a temporary mandatory injunction on April 22, 2024, ordering the owners to remove obstructions. This was upheld by the District Court on April 3, 2025. The landowners then approached the High Court through a Writ Petition, arguing that the villagers failed to meet the strict pleading requirements for a "customary easement" under the Indian Easements Act, 1882.

The Court found that the villagers were not claiming an easement attached to a specific "dominant" property, but a collective right belonging to the inhabitants of Baner. Crucially, the Court observed that the owners failed to specifically deny the antiquity of the festival in their first defense statement, which allowed the lower courts to justifiably grant interim relief. Evidence such as a 1967 Sale Deed mentioning the land's use for the festival and photographs of celebrations dating back to 1998 further supported the villagers' prima facie case.

“A conjoint reading of Section 2(b) and Section 4 of the Easements Act, 1882 would thus make it crystal clear that, an easement is always appurtenant to the dominant tenement and is inextricably attached to the dominant tenement and cannot be severed from it. Conceivably, there can be no easement without dominant tenement and a servient tenement. Thus, a customary right to which the Easements Act, 1882 refers and, yet, does not govern, is materially distinct from a customary easement. A customary right is a right over property that exists in gross and not for the beneficial enjoyment of the other property. It is the right of the community or right recognised by the community as a whole”, the Bench noted.

“With the aforesaid clarity on the marked distinction between a customary easement and a customary right, if the case set up by the Plaintiffs is appraised, it becomes abundantly clear that, the suit, in a sense, asserts customary right of the villagers of Baner over the suit property, de hors the claim of ownership or possession over the properties adjoining to, or in the vicinity of, the suit property. The claim of the Plaintiffs is that the villagers of Baner as a body or community have been exercising the right to celebrate Bagad festival over the suit property since time immemorial”, the Bench noted further.

The Court highlighted that constitutional property rights, while vital, do not grant new owners the immediate authority to extinguish established communal rights that have existed "since time immemorial”.

The Bench noted, “A long usage of the custom is indispensable for its recognition and validity. Indeed the custom derives its force from the fact that it has a long usage. However, it does not seem to be an immutable rule of law that the antiquity of the custom, in every case must be traced back to a period beyond the memory of the man, during whose lifetime the custom is contested. Undoubtedly, the usage must be of long duration. But the longetivity of duration cannot be measured in a straight-jacket and it would hinge upon the fact-situation of the case”.

The Court dismissed the petition, upholding the injunction that allows the Bagad festival to proceed. However, to balance the owners' rights, the Court ordered that the main suit be decided expeditiously to provide a final resolution on the permanent ownership and usage rights.

Cause Title: Ganesh D. Tapkir & Anr. v. Baner Yethil, Samasta Gramastha Mandal & Ors. [Neutral Citation: 2026:BHC-AS:15517]

Appearances:

Petitioners: Senior Advocate Anil Anturkar, with Atharva Date, Kashish Chellani, and Minal Chandnani, Hemanth Ghadigaonkar, Advocates.

Respondents: Avinash Bhuskute, R.S. Khadapkar, Advocates.

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