ORDER 1. Appellants/plaintiffs have filed the present appeal under Order 43 rule 1 of CPC against the order dated 21.2.2013 passed by the 10th Additional District Judge by which application under Order 39 rules 1 and 2 for temporary injunction has been rejected. 2. Facts of the case, in short, for disposal of this miscellaneous appeal are as under : 3. Plaintiffs have purchased a piece of agricultural land bearing Khasra No.89/1/4 and 91/1 (area 0.169 hectares and 0.234 hectares) respectively of Gram Chetawad, Tahsil Dewas by sale deed dated 21.01.2000. The boundaries of the land are described in the sale deed itself. According to the plaintiff, the predecessors were having 70 feet wide road (hereinafter referred as "suit land") from Ring Road to approach their land since last 32 years which they were using without any obstruction and after the sale deed, the said easementary right has been transferred to him. In the month of August' 2012 some officers of the IDA visited the spot.“Thereafter, plaintiffs read notice published by IDA in the newspaper dated 14.9.2012 by which plot No.2, Scheme No.94 has been reserved for educational purpose. NITs were invited for sale of the said land. The suit land which is being used by the plaintiff as way to their land is part of Plot No.2. Immediately the plaintiff filed the writ petition before this Court i.e. Writ Petition No.9110/2012 challenging the tender notice dated 14.9.2012. Vide order dated 25.9.2012 interim protection was granted to the plaintiffs. The respondents took an objection that writ petition seeking easementary right is not maintainable and said land has already been acquired in the year 1987 under the Land Acquisition Act and award to that effect has been passed on 30.3.1991. The respondent No.3 also intervene in the said writ petition as they are also owner of the adjacent land (Area 1.50 lac sq.ft) because they wanted to construct a 30 beds hospital on it. They have also claimed the right to passage through Plot No.2. Later on, the writ petition was withdrawn on 7.8.2012 with a liberty to file a civil suit. Thereafter, the respondent No.3 by way of open auction has purchased the Plot No.2 from the IDA for the construction of educational institution. They have also claimed the right to passage through Plot No.2. Later on, the writ petition was withdrawn on 7.8.2012 with a liberty to file a civil suit. Thereafter, the respondent No.3 by way of open auction has purchased the Plot No.2 from the IDA for the construction of educational institution. The plaintiff filed the suit along with an application under Order 39 rules 1 and 2 seeking relief that the suit land is only passage available to reach teir land from Ring Road, therefore, the defendant be restrained to obstruct the said right of way. The plaintiffs have also challenged the award passed by the Land Acquisition Officer. 4. After notice defendants No.1 and 2 filed reply to the“application under Order 39 rules 1 and 2 stating that the entire land has been acquired in the year 1987 under the provisions of Land Acquisition Act and now vested with the IDA. The entire area has been developed by the IDA. The defendant No.3 also filed reply stating that they have purchased Plot No.2 from the IDA for construction of Educational Institute, therefore, the plaintiffs are not entitled for temporary injunction. 5. The learned Additional District Judge did not found prima facie case in favour of the plaintiffs and also held that they are not going to suffer irreparable loss if temporary injunction is not granted. The balance lies on the defendant, hence vide order dated 21.3.2012 the application for temporary injunction has been rejected. Hence, the present appeal before this Court. 6. Vide order dated 25.2.2013, notices were issued and by way of interim relief, it was directed that approach road of the land of the plaintiffs/appellants shall not be disturbed till the next date of hearing. 7. Shri Ajay Mishra, learned counsel for the appellants/plaintiffs submits that the plaintiffs purchased the land by way of registered sale deed from the erstwhile owner Bherulal and Suresh who were having the easementary right to approach their land from Ring Road through suit loand and same right has been passed on to the plaintiffs, therefore, the suit land is being used since last 32 years as way to approach. The defendant No.3 was also facing the same problem when the Plot No.2 was acquired by the IDA. The defendant No.3 was also facing the same problem when the Plot No.2 was acquired by the IDA. Vide letter dated 26.2.2011, CEO, Indore has informed the Secretary, Awas Awam Paryawaran Vibhag that the board has recommended for providing 20 meters vide road to the Vishesh Hospital looking to their practical problem to approach their hospital. 8. Shri Ajay Mishra, learned counsel for the appellants further submits that the said resolution as well as the recommendation is equally applicable to the case of the plaintiff which was written in favour of the respondent No.3. Since the respondent No.3 has purchased Plot No.2 from the IDA, therefore, the IDA is not honouring their own resolution and recommendation. The proceedings of the civil suit has reached to the stage of evidence, therefore, the interim protection which was available to them may be continued till the disposal of the suit. 9. Shri Yogesh Mittal, learned Advocate appearing for IDA submits that the plaintiffs are not having any vested right. In the sale deed there is no mention about the easementary right was available to the seller, therefore, the said right could not have been transferred to the plaintiffs. After acquisition of the land under the Land Acquisition Act, the entire property has been vested with the IDA free from all encumbrance. 10. Shri Sunil Jain, learned Senior Advocate appearing for the respondent No.3 submits that now respondent No.3 has become the owner of the land which they purchased by way of open auction for construction of Educational Institute, therefore, the plaintiffs cannot claim the right of way from their land and if the stay continues till the decision of the civil suit that would be continued in first appeal and second appeal. Earlier ex parte interim order was granted to plaintiff but now it has been decided by bi-parte order by the trial Court after appreciating material on record, therefore, the appeal is liable to be dismissed. 11. I have heard learned counsel for the parties at length. 12. Copy of the sale deed dated 21.1.2000 is available on record. In the entire sale deed, it is nowhere mentioned that the seller was having easementary right through suit land and land in question is only approach road available to the owner. Boundaries of both the lands are mentioned and same are surrounded by a private land. 13. 12. Copy of the sale deed dated 21.1.2000 is available on record. In the entire sale deed, it is nowhere mentioned that the seller was having easementary right through suit land and land in question is only approach road available to the owner. Boundaries of both the lands are mentioned and same are surrounded by a private land. 13. Case of the plaintiffs is based on the easementary right and according to them, the right which was available to their seller has been flown to them by virtue of sale deed, therefore, they are treated to be continuously using the land since last 32 years. The plaintiffs have not filed any affidavit of their predecessors to the effect that they were using the suit land as a right of way. 14. Section 8 of the Transfer of Property Act, 1882 deals with the transfer of rights and transfer of interest in case of sale and according to which unless a different intention is expressed or necessarily implied a transfer of property passes forthwith to the transferees all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof if the property is a land then easements annexed thereto also passes to the purchaser. 15. The easementary rights are transferable but prima facie the plaintiffs must establish that the said rights were available to the seller. In support of their application for temporary injunction they could have filed atleast an affidavit of seller and they were enjoying the easementary right over the suit land. 16. It is not disputed that the suit land has been acquired under the provisions of the Land Acquisition Act. The notification under section 4 of the Land Acquisition Act was published and thereafter the award was passed in the year 1991 which the plaintiffs have challenged in the civil suit. It is settled law that the civil Court has no jurisdiction to interfere with the award passed under the Land Acquisition Act. Section 16 of the Land Acquisition Act specifically provides that if the land is acquired same would be free from all encumbrance. Section 16 of the Land Acquisition Act is reproduced below : Transfer to take effect on failure of prior interest. Section 16 of the Land Acquisition Act specifically provides that if the land is acquired same would be free from all encumbrance. Section 16 of the Land Acquisition Act is reproduced below : Transfer to take effect on failure of prior interest. -- Where, by reason of any of the rules contained in sections 13 and 14, an interest created for the benefit of a person or of a class of persons fails in regard to such person or the whole of such class, any interest created in the same transaction and intended to take effect after or upon failure of such prior interest also fails. The apex Court in the case of State of H.P. v. Tarsem Singh and Others, reported in, [ (2001)8 SCC 104 ], has given the above interpretation of section 16 of the Land Acquisition Act. Paras 2, 7, 8, 9, 11 to 12 is reproduced below: "2. Learned counsel appearing for the appellant urged that under section 3 of the Act, the easementary right along with the right in the land has been extinguished and came to“be vested in the State free from all encumbrances and the view taken by the High Court is erroneous. On the other hand, Shri Arvind Kumar, learned counsel appearing for the respondents, relying upon a decision in the case of Megh Raj and another v. Allah Rakhia and others, [AIR (34) 1947 Privy Council 72 urged, that the expressions 'right in the land" and 'right over the land' convey different meanings. According to him, easementary right which is over the land is distinct from right in the land and since only right in the land has vested in the State, therefore, there is no vesting of easementary right in the State. 7. In the aforesaid two cases, Entry 21 of List II of Seventh Schedule of Government of India Act and Entry 18 of List II of Seventh Schedule of Constitution of India were relied upon for the purpose of holding that there was a legislative competence while enacting the land Acts. The question whether vesting of all interests and rights in the land free from all encumbrances would also include easementary right was not the subject matter of decisions and, therefore, said decisions have no application in the present case. The question whether vesting of all interests and rights in the land free from all encumbrances would also include easementary right was not the subject matter of decisions and, therefore, said decisions have no application in the present case. Section 3 of the Act provides that, notwithstanding any custom, usage, instrument, agreement or decree of the Court all titles, interests and rights in the land shall stand extinguished and all such rights, title and interests shall vest in the State free from all encumbrances. Learned counsel when argued that easementary right being over the land has not vested in the State omitted to consider the significance of the expression 'free from encumbrances'. The word "encumbrance" means a burden or charge upon property or a claim or lien upon an estate or on the land. "Encumber" means burden of legal liability on property, and, therefore, when there is encumbrance on a land, it constitutes a burden on the title which diminishes the value of the land. In Abdul“Karim Khan and others. v. Managing Committee, George High School AIR 1936 Allahabad 879, it was held that encumbrance would include easementary right of drainage over the land. In Rashid Allidina v. Jiwandas Khemji and another [AIR (30) 1943 Calcutta 35, it was laid down that the word 'encumbrance' has always been understood to include easementary right. In Ganga Vishnu Swaika v. Machine Manufacturing Co. Ltd and another, it was ruled that an easementary right to discharge water on other's land comes within the meaning of encumbrance on the right in the land. 8. In the aforesaid decisions, it was laid down that the right of easement on land is an encumbrance on the land and once the land vests in the State free from all encumbrances, the easementary right pertaining to that land shall also vest in the State. In Fruit and Vegetable Merchants Union v. Delhi Improvement Trust [ 1957 SCR 1 ], this Court while interpreting the words "vest absolutely in the Government free from all encumbrances" occurring in section 16 of the Land Acquisition Act held as thus : "On the other hand, sections 16 and 17 of the Land Acquisition Act (Act 1 of 1894), provide that the property so acquired, upon the happening of certain events, shall 'vest absolutely in the Government free from all encumbrances'. In the cases contemplated by ss.16 and 17 the property acquired becomes the property of Government without any conditions or limitations either as to title or possession." Thus where the land vests absolutely free from all encumbrances not only the rights in the land vest in the State but possession of the land also. 9. In the present case, section 3 of the Act starts with an non obstante clause. Notwithstanding contained in any law, agreement, instrument, custom or usage or“any decree of the Court, all rights, title and interests in the land shall stand extinguished and all such rights, title and interests shall vest in the State free from all encumbrances. If we accept the argument of learned counsel for the respondents that easementary right being over the land and the same has not vested in the State under section 3 of the Act, the result would be that the land would carry burden or charge affecting possession, interests and rights in the land. Such a meaning cannot be given to the expression 'free from encumbrances'. When the Legislature has used the expression 'free from encumbrances', it means the vesting of land in the State is without any burden or charge on the land, including that of easementary right. We are, therefore, of the view that the consequence of vesting of right in the land free from all encumbrances is that the interest, right and title to the land including the easementary right stood extinguished and such rights vested in the State free from all encumbrances. 11. Before we part with the case, we cannot overlook the interest of the plaintifsrespondents herein. It is not disputed that the land in dispute is a pasture land and is being used for grazing. Section 8 of the Act provides the purpose for which land vested in the State Government can be utilised. One of the purposes for which such land can be utilised is for grazing the cattles and the State Government is required to allot the same as pasture land. If the purpose of vesting is to provide land to village community for grazing, there is no reason why the land be not be used as a pasture land for grazing. However, we leave this question open to be decided by the State Government. 12. If the purpose of vesting is to provide land to village community for grazing, there is no reason why the land be not be used as a pasture land for grazing. However, we leave this question open to be decided by the State Government. 12. For the aforesaid reasons, we are of the view that the Courts below fell in error in holding that the easementary right has not“vested in the State. We, therefore, set aside the judgment under challenge. The appeal is allowed. There shall be no order as to costs."� 17. In view of the apex Court's judgement even if any easementary right was available which is yet to be established by the plaintiffs, have been seized the moment the notification under section 4 has been issued and thereafter, the final award is passed. The suit property has been transferred to the IDA free from all encumbrance which has been sold to defendant No.3 by way of open auction. The resolution and recommendation written by the IDA which were written in favour of the defendant No.3 stand superseded and would not apply in case of plaintiffs. The entire land has been sold to the defendant No.3, therefore, there is no prima facie case in favour of the plaintiffs to use the said land for way to approach their land. 18. In entire plaint, the plaintiff has not stated that except this way they do not have any other way available to approach their land. They only pleaded that suit land is the only way from Ring Road. They must have other ways from the side road which they did not specifically pleaded in the plaint, therefore, the trial Court has rightly came to the conclusion that it is not a case of irreparable loss. I do not fin any merit in the appeal to interfere with the order of the trial Court, hence appeal is accordingly dismissed. 19. No order as to costs.