Customary Right (in Gross) to Use Private Land for Village Festival Is Distinct from Customary Easement; Interim Protection Sustained Under Article 227

1) Introduction

The litigation arose from a representative suit filed by an association of Baner villagers (“Baner Yethil Samastha Gramastha Mandal” through its representatives—Respondent Nos. 1 to 10) asserting a long-standing community practice of celebrating the “Bagad” festival on Hanuman Jayanti on an open parcel of land (the suit property) situated in front of “Shree Bhairavnath Paduka Mandir” at Survey No. 288, Baner, Pune.

The Petitioners (original Defendant Nos. 1 and 2) had acquired rights over the suit property via a 2022 sale deed from a developer. The Plaintiffs alleged that the Petitioners began excavation and erected structures that would obstruct the festival, prompting applications for: (i) prohibitory temporary injunction to prevent obstruction, and (ii) interim mandatory injunction directing removal of the alleged obstructions and restoration of status quo ante before the festival date.

The trial court granted both injunctions; the District Judge dismissed the Petitioners’ appeal. The Petitioners then invoked the High Court’s supervisory jurisdiction under Article 227, framing the dispute as an impermissible invasion of constitutionally protected property rights by a “majority of villagers” claiming a non-existent “customary easement.”

Key Issues

• Whether the Plaintiffs’ claim is properly characterised as a “customary easement” under the Indian Easements Act, 1882, or as a broader “customary right” in gross.
• Whether, at the interim stage, there was sufficient pleading/material to justify injunctive relief protecting the alleged custom.
• The limits of interference under Article 227 with discretionary interim injunction orders.

2) Summary of the Judgment

3) Analysis

A) Precedents Cited

(i) Cristina Marques Vs Lily Dias Alias Lilia Dias Toscano Alias Lily Dias Toscano. (2021 (4) MhLJ 788)

This authority was invoked by the Petitioners to stress that a claim of “customary easement” requires clear and specific pleadings—particularly regarding the origin, continuity, and incidents of the custom—failing which no relief should follow.

The High Court did not reject the general proposition about the importance of pleadings; instead, it neutralised the submission by re-characterising the Plaintiffs’ case as a “customary right” rather than a “customary easement.” Consequently, the decision’s central move was not to dilute pleading standards, but to correct the legal lens through which the pleaded facts were to be assessed.

(ii) Ram Kanya Bai And Anr Vs Jagdish and Ors (AIR 2011 SC 3258)

The Court relied on this precedent to set out the classical elements necessary to establish a custom:

• ancient or from time immemorial,
• regular and continuous,
• certain and not varied, and
• reasonable.

This framework structured the Court’s prima facie evaluation. Importantly, the Court applied it at an interim stage—meaning it assessed whether the Plaintiffs had shown enough to warrant protection pending trial, not whether the custom was finally proved.

(iii) Patneedi Rudrayya Vs Velugubantla Venkayya And Ors (AIR 1961 SC 1821)

This Supreme Court decision was used to explain “time immemorial”: where the commencement is not within human memory or is “shrouded in the mists of antiquity.” The High Court used it to caution against a rigid, arithmetic approach to antiquity; “long duration” is essential, but its assessment depends on context.

The Court thereby justified a flexible prima facie inquiry into antiquity, particularly in community-practice disputes where documentary traces may be limited and the custom is asserted as part of lived village tradition.

(iv) Rajendra Diwan v. Pradeep Kumar Ranibala and Anr ((2019) 20 SCC 143)

This Constitution Bench decision anchored the Court’s refusal to interfere under Article 227. The High Court quoted the limits of supervisory jurisdiction: it is “supervisory and not appellate,” exercised sparingly, and cannot be used “in the cloak of an appeal in disguise.”

By placing the Article 227 analysis at the close, the Court effectively treated the Petition as an attempt at second appellate scrutiny of discretionary interlocutory relief—something Rajendra Diwan instructs High Courts to resist absent patent error, perversity, or jurisdictional failure.

B) Legal Reasoning

1. Correct classification: customary right vs customary easement

The judgment’s doctrinal core is its clarification that the Plaintiffs were not asserting an easement under the Easements Act, 1882. The Court reasoned:

• Easements are appurtenant: Under Section 4 of the Easements Act, 1882, an easement is a right enjoyed by an owner/occupier “as such” for beneficial enjoyment of their land (dominant tenement) over another’s land (servient tenement).
• Customary rights in gross are distinct: A community’s right (e.g., villagers of a village) to use land by custom is not attached to a dominant tenement and may be exercised by a “fluctuating body.”
• Statutory recognition of the distinction: Section 2(b) of the Easements Act, 1882 expressly preserves “any customary or other right… irrespective of other immovable property,” signalling that such rights exist outside (and are not governed by) the easement framework.

This move was decisive because it answered the Petitioners’ principal attack: the alleged absence of pleadings for a “customary easement.” Once the claim was seen as a customary right, the pleading critique—though still relevant in general—lost much of its force in the form presented.

2. Prima facie existence/exercise of the custom: non-traverse and supporting material

At the interim stage, the Court assessed whether the Plaintiffs showed a prima facie case of the custom’s existence and exercise. The Court emphasised:

• Non-traverse in the injunction reply: The Petitioners’ initial reply focused on technical objections and asserted only that the Plaintiffs’ assertions had “no nexus” with the suit property, without specifically traversing key factual claims regarding long-standing celebration. The Court upheld the lower courts’ inference that this amounted to a lack of effective denial at that stage.
• Photographs: Photos depicting festival celebrations from 1998 onwards were treated as supporting prima facie material (not conclusive proof).
• Site context: The existence of the temple and the suit land being in front of it was “incontestable,” and the land’s continued open character amid urban development was noted as potentially relevant.

The Court also rejected the attempt to rely on later, more general denials in the written statement to attack the earlier interim orders, holding that interim discretion must be tested on the material and pleadings available when the discretion was exercised.

3. Evidence Act relevance at interim stage: Sections 13 and 48

The Court provided two important evidentiary signposts for customary-right litigation:

• Section 13, Evidence Act, 1872 (transactions relevant to right/custom): The 1967 sale deed describing the property (and allegedly earmarking the festival area) was treated as potentially relevant because transactions recognising, asserting, or being inconsistent with a right/custom can be relevant to its existence. The Court candidly noted discrepancies in later deeds, but treated the 1967 deed’s effect as a matter for trial.
• Section 48, Evidence Act, 1872 (opinions as to general custom/right): Affidavits of persons “likely to know” of the custom were treated as relevant opinions on existence of a general custom/right. The Court also used the Petitioners’ own earlier stance (objecting that such persons were co-owners and thus improperly plaintiffs) to undermine their later attempt to discard those affidavits as valueless.

While these observations were prima facie, they meaningfully guide what kinds of material may legitimately support interim protection of alleged customs.

4. Balancing with property rights and the interlocutory posture

The Petitioners framed the case as an unjustified invasion of the constitutional right to property. The Court did not deny the seriousness of property rights (implicitly under Article 300A), but held that:

• there was prima facie material supporting the Plaintiffs’ customary-right claim, and
• the High Court’s role under Article 227 is not to reweigh facts where subordinate courts have exercised discretion on relevant considerations.

To address the practical burden on owners, the Court directed expedited trial—an equitable procedural counterbalance frequently employed where interim restraints may otherwise operate for long periods.

5. Article 227 limits: supervisory, not appellate

Applying Rajendra Diwan v. Pradeep Kumar Ranibala and Anr, the Court held that Article 227 intervention is confined to:

• jurisdictional error,
• patent illegality going to the root,
• perversity/arbitrariness/unreasonableness,
• natural justice violations,
• lack/usurpation of power.

Finding none, it refused interference even if an alternative view might be arguable—reinforcing finality and discipline in interlocutory appellate structures.

C) Impact

1. Doctrinal impact: clarifying the “right” being claimed

The judgment supplies a clear analytical pathway for courts facing community practices on private land:

• First classify whether the claim is an easement (appurtenant) or a customary right in gross (community-based and not tied to any dominant tenement).
• Use Section 2(b) of the Easements Act, 1882 as a statutory marker preserving customary rights “irrespective of other immovable property.”

This classification can determine pleading focus, evidentiary expectations, and even the suitability of relief (e.g., declaratory relief for customary right vs easement declarations).

2. Evidentiary impact: what may matter at the interim stage

The Court’s invocation of Sections 13 and 48 of the Evidence Act, 1872 signals that:

• older conveyancing documents may be used to show recognition or assertion of customary use, and
• opinions/affidavits of persons likely to know local custom may support interim findings.

This may encourage litigants to marshal historically rooted documentary descriptions and community testimony early, especially in festival/procession disputes.

3. Procedural impact: non-traverse can be costly in injunction replies

The judgment underscores that a defendant’s first response to an injunction application matters. Vague denials or purely technical objections, without traversing key factual assertions, can lead to adverse prima facie inferences and interlocutory restraints that are hard to dislodge under Article 227.

4. Governance impact: managing conflict between development and community practices

In rapidly urbanising areas, this decision may be relied upon to seek interim protection of long-standing community religious/cultural practices where development threatens to extinguish the physical space essential to performing them—subject, however, to later proof at trial and judicial balancing.

4) Complex Concepts Simplified

• Customary easement: A private right attached to a particular piece of land (dominant tenement) to use another’s land (servient tenement), e.g., a right of way benefiting a specific property.
• Customary right (right in gross): A community’s right not tied to ownership of any dominant land—e.g., villagers’ customary right to use an open area for an annual festival.
• Time immemorial: Not necessarily a specific number of years; it means the start is beyond living memory or lost in antiquity (as explained in Patneedi Rudrayya Vs Velugubantla Venkayya And Ors).
• Non-traverse: When a party does not specifically deny important factual assertions, courts may treat those assertions as not effectively disputed at that stage.
• Temporary injunction vs mandatory injunction: A temporary (prohibitory) injunction restrains conduct (don’t obstruct the festival); a mandatory injunction compels action (remove structures; restore status quo ante).
• Article 227 jurisdiction: The High Court’s supervisory power over subordinate courts—meant to correct grave jurisdictional/legal errors, not to function as another appeal on facts.

5) Conclusion

This judgment’s central contribution is its sharp doctrinal separation between a “customary easement” and a “customary right” in gross. By holding that a fluctuating body of villagers cannot claim an easement but may assert a customary right preserved by Section 2(b) of the Easements Act, 1882, the Court reframed the dispute in a manner that justified interim protection pending trial.

Equally significant is the Court’s procedural messaging: defendants must specifically traverse core factual claims at the earliest interlocutory stage; otherwise, concurrent discretionary injunction orders will be difficult to unsettle in Article 227 proceedings. Finally, by expediting the suit, the Court acknowledged the practical burden of interim restraints on property owners while maintaining protection for a claimed community practice until final adjudication.