JUDGMENT : Saral Srivastava, J. 1. Heard learned counsel for the petitioners and Sri Atul Dayal, learned Senior Advocate assisted by Sri Manish Tandon, learned counsel for the respondents. 2. The petitioners are defendants in Suit No. 225 of 2007 and have assailed the judgement and order dated 10.12.2019 passed by Additional District Judge, Court No. 14, Kanpur Nagar whereby he has allowed the SCC Revision No. 37 of 2017 and decreed the Suit No. 225 of 2007 of respondents (plaintiffs in the suit) against petitioners for eviction. 3. The facts of the case, in brief, are that respondent No. 1 Smt. Bhagwan Dei (since deceased) and respondent No. 2/1 Smt. Renu Gupta instituted Suit No. 225 of 2007 (hereinafter referred as 'Suit') against petitioners praying for a decree of eviction from House No. 5/167, Purana Kanpur Nagar Road, Kanpur Nagar (hereinafter referred to as 'suit property'), and for recovery of arrears of rent and damages. The case of the respondents in the plaint was that the maternal uncle of respondent No. 1 was the owner of the suit property. After his death, his sister Smt. Rani Devi and respondent No. 1 became joint owner of the suit property. Smt. Rani Devi died on 20.6.2005 and after her death, her share devolved upon respondent No. 2/1. One Shiv Mangal Gupta was the tenant of one room facing Ganga river @ Rs. 5/- per month and two rooms facing roadside @ Rs. 100/- per month. It was further pleaded that Shiv Mangal Gupta tried to encroach upon the land appurtenant to the suit property which led to the institution of another Suit No. 610 of 1999 by respondents against Shiv Mangal Gupta in which temporary injunction was granted. 4. In the said suit, Shiv Mangal Gupta filed written statement admitting the tenancy of one room towards river Ganga but denied the tenancy of two rooms towards the roadside. Shiv Mangal Gupta died on 16.2.2007. After his death, Petitioners being legal heirs of Late Shiv Mangal Gupta became the tenant of the suit property. It was further stated that neither Shiv Mangal Gupta nor his heirs paid rent of the suit property. Consequently, a notice dated 12.6.2007 was sent to the petitioners terminating the tenancy which returned unserved on 21.6.2007 with the endorsement 'not claimed'. After his death, Petitioners being legal heirs of Late Shiv Mangal Gupta became the tenant of the suit property. It was further stated that neither Shiv Mangal Gupta nor his heirs paid rent of the suit property. Consequently, a notice dated 12.6.2007 was sent to the petitioners terminating the tenancy which returned unserved on 21.6.2007 with the endorsement 'not claimed'. It is further averred that the tenancy of the petitioners came to an end on expiry of 30 days from 21.7.2007; the petitioners are in unauthorized occupation of the suit property since 22.7.2007. Since the major portion of the rent had become time-barred, therefore, respondents prayed for a decree of rent of three years before the institution of the suit beside the decree for eviction. 5. The suit was contested by all the petitioners by filing two written statements, one by petitioner Nos. 2, 3 and 5 jointly and the other by petitioner Nos. 1 and 4. 6. The petitioner No. 2, 3 and 5 averred in their written statement that Late Shiv Mangal Gupta was the tenant of one room of the suit property since last 40-45 years. They further pleaded that suit property has been acquired by Kanpur Development Authority (hereinafter referred to as 'K.D.A.') for construction of Ganga road, therefore, the respondents had no title or interest in the suit property and on the acquisition of the suit property, relationship of tenant and landlord between the parties came to an end due to which no rent was paid to the respondents. It was further stated in the written statement that the two rooms have been constructed by the petitioners and they are the owner of the two rooms. It was further stated that respondents have instituted another Original Suit No. 814 of 2000 against K.D.A., which is pending in the Court of Civil Judge (Senior Division), Kanpur Nagar, seeking a decree of declaration in respect of the suit property. 7. The stand of petitioner Nos. 1 and 4 in the written statement was similar to the stand taken by the petitioner Nos. 2, 3 and 5 in their written statement. The petitioner Nos. 1 and 4 also admitted the tenancy of the suit property in their written statement. 8. The trial Court framed four issues based on pleadings between the parties. The issue No. 1 was concerning the relationship of landlord and tenant between respondents and petitioners. 2, 3 and 5 in their written statement. The petitioner Nos. 1 and 4 also admitted the tenancy of the suit property in their written statement. 8. The trial Court framed four issues based on pleadings between the parties. The issue No. 1 was concerning the relationship of landlord and tenant between respondents and petitioners. Issue No. 2 was in respect of default in payment of rent by the petitioners. Issue No. 3 was as to whether tenancy of the petitioners has been terminated by a valid notice, and the issue No. 4 was in respect of relief which the respondents are entitled to. 9. The trial Court, after appreciating the facts and evidence on record, held that though, in a suit for eviction, the relationship of landlord and tenant is to be seen, but the question of title is also involved incidentally in such suit, therefore, it can also be looked into. The trial Court found that respondents had instituted the Suit No. 814 of 2000 (Smt. Rani Devi v. Kanpur Development Authority) against KDA, and there are material and evidence on record in the said suit that suit property had been acquired by KDA, therefore, the respondents had failed to demonstrate that they are the owner and the petitioners are the tenant of the suit property. It further held that as admittedly, rent was not paid by the petitioners to the respondents, therefore, there was no relationship of landlord and tenant between respondents and petitioners. Consequently, it decided issue No. 1 against the respondents. 10. As issue No. 1 was decided against respondents, accordingly, the trial Court decided the issue Nos. 2 and 3 also against the respondents because of the finding on issue No. 1. 11. Feeling aggrieved by the order of the trial Court, respondents preferred SCC Revision No. 37 of 2017 which was allowed by the revision Court by recording a finding that even if suit property had been acquired, the suit for eviction and arrears of rent instituted by the respondents was maintainable. The revision Court held that in a suit for eviction, only the relationship of landlord and tenant is to be seen between the parties. By recording the aforesaid finding, it set aside the finding of the trial Court that question of the title being incidental can also be considered in a suit for eviction. 12. The revision Court held that in a suit for eviction, only the relationship of landlord and tenant is to be seen between the parties. By recording the aforesaid finding, it set aside the finding of the trial Court that question of the title being incidental can also be considered in a suit for eviction. 12. The revision Court further held that if there was any dispute between the petitioners and KDA, petitioners cannot take advantage of the said dispute until they prove that they were inducted as a tenant in the suit property by the KDA. It further held that petitioners did not file any evidence on record in the suit to prove that possession of the suit property had been taken over by the KDA. The revision Court further found that petitioners have admitted the tenancy of the suit property, and thus, the relationship of landlord and tenant between respondents and petitioners is proved. It further found that notice terminating the tenancy was valid and petitioners had defaulted in payment of rent. Consequently, it decreed the suit of the respondents. 13. Challenging the aforesaid order, learned counsel for the petitioners has contended that with the acquisition of Suit Property, the respondent ceased to be the owner of the suit property and there was no relationship of landlord and tenant between the respondent and the petitioner, therefore, the suit was not maintainable. He further submits that the KDA had taken the symbolic possession of the suit property is evinced from the Possession Memo (Dakhalnama) dated 28.2.1973, therefore, finding of the revision Court that petitioners had failed to prove that possession of the suit property had been taken by the KDA is illegal and perverse. Thus, his submission is that revision Court has committed manifest illegality in allowing the revision and decreeing the suit. He has placed reliance upon paragraph 16 (iv) of the judgement of Apex Court in the case of Prahlad Singh and others v. Union of India and others, 2011 (4) AWC 3650. 14. Refuting the aforesaid submission, learned Senior Counsel for the respondents by placing reliance upon Section 116 of the Evidence Act, 1872 has contended that petitioners have admitted in their written statement that their father was the tenant of the suit property through whom they have acquired tenancy, therefore, they are estopped in law in denying and challenging the relationship of landlord and tenant. In respect of the said submission, he has placed reliance upon the judgement of Apex Court in the case of State of A.P. and others v. D. Raghukul Pershad (D) by L.Rs. and others, 2012 (5) AWC 4378 (SC). 15. He further contends that in a suit for eviction, the relevant issue which calls for determination by the Court is as to whether there exists relationship of landlord and tenant between the parties, and in the present case, revision Court found that there exist relationship of landlord and tenant between the parties, therefore the Suit is maintainable. His further submission is that finding of revision Court on the issue of the relationship of landlord and tenant is based upon the proper appreciation of evidence on record and sound principals of law, and as such is not liable to be interfered with by this Court. He further submits that trial Court has committed gross illegality in recording a finding that suit was not maintainable as respondents have failed to prove their title over the suit property, and said finding has rightly been corrected by the revision Court in the exercise of its revision jurisdiction under Section 25 of Provincial of Small Cause Courts Act, 1887. In support of his aforesaid submission, he has placed reliance upon the judgment of this Court in the case of Raju Savita v. Amarnath, 2018 ADJ Online 0445. 16. He further contends that the actual physical possession was not taken by the KDA and is with the respondents. He has also placed reliance upon paragraph 16 (iii) of the judgement of the Apex Court in the case of Prahlad Singh (supra). 17. I have considered the rival submissions of the parties and perused the record. 18. In the present case, petitioners have denied the relationship of tenant and landlord on the ground that the suit property had been acquired by KDA and award had been passed in respect of the suit property. However, the petitioners have admitted in their written statements that their father was the tenant of the suit property. Further. DW-I Munish Chandra Gupta in his testimony has admitted that his father was the tenant of the suit property and had paid the rent of the suit property last time in the year 1960. However, the petitioners have admitted in their written statements that their father was the tenant of the suit property. Further. DW-I Munish Chandra Gupta in his testimony has admitted that his father was the tenant of the suit property and had paid the rent of the suit property last time in the year 1960. Thus, it is established from the own case of the petitioners that suit property was taken on rent by their father and their father was the tenant of the suit property. 19. At this point, it would be relevant to refer Section 116 of the Indian Evidence Act, 1877 which reads as under: 'Estoppel of tenant; and of licensee of person in possession- No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given." 20. This section precludes tenant of an immoveable property during the continuance of tenancy to deny the title of the landlord at the beginning of the tenancy, howsoever defective it may be. Therefore, it implies that if the tenant wishes to deny the title of the landlord, he must First surrender the possession of the property back to him. The Apex Court in the case of State of A.P. (supra) has held that the tenant will have to surrender possession of the property to the landlord before he can challenge the title of the landlord. Paragraph 6 of the judgment in the case of State of A.P. (supra) is extracted hereinbelow: "6. The law is settled by this Court in D. Satyanarayana v. P. Jagdish, 1987(4) SCC 424 , that the tenant who has been let into possession by the landlord cannot deny the landlord's title however defective it may be, so long as he has not openly surrendered possession by surrender to his landlord. Although there are some exceptions to this general rule, none of the exceptions have been - established by the appellants in this case. Although there are some exceptions to this general rule, none of the exceptions have been - established by the appellants in this case. Hence, the appellants who were the tenants of the respondents will have to surrender possession to the respondents before they can challenge the title of the respondents." 21. Thus, to get out of the rigour of Section 116 of the Evidence Act and the law laid down by the Apex Court in the above-referred case, the tenant has to surrender the possession of the property before he can challenge the title of the landlord. However, in the instant case, nothing transpires from the record which could demonstrate that petitioners have surrendered the possession of the suit property before challenging the title of the respondent. Consequently, the petitioners are estopped in law in challenging or denying the title of respondents, howsoever defective it may be in view of Section 116 of the Indian Evidence Act, 1877. 22. It would also be pertinent to refer to the judgment of the Apex Court in the case of Sheela Jawarlal Nagori and another v. Kantilal National Baldota and others, 2014 (3) ARC (5), wherein Apex Court has held that landlord can maintain a suit for eviction against tenant even if the tenanted property has been acquired and an award has been passed in respect thereof under the provision of the Land Acquisition Act, 1894. Further, this Court in the case of Raju Savita (supra) has held that in a suit for eviction, only the relationship of landlord and tenant is to be seen. 23. It is evident from the aforesaid discussion that the relationship of landlord and tenant is established between the respondent and the petitioner, therefore, the suit of the respondent was maintainable. Consequently, this Court does not find any merit in the submission of the counsel for the petitioner that the suit was not maintainable as on the acquisition of the suit property by KDA, the title of respondent over suit property had vanished and the relationship of landlord and tenant had ceased to exist between the parties. 24. Consequently, this Court does not find any merit in the submission of the counsel for the petitioner that the suit was not maintainable as on the acquisition of the suit property by KDA, the title of respondent over suit property had vanished and the relationship of landlord and tenant had ceased to exist between the parties. 24. To appreciate the other contention of the counsel for the petitioners that the symbolic possession of the suit property was taken by the KDA, it would be apt to refer the judgement of Apex Court in the case of Prahlad Singh (supra) relied upon by both the parties wherein Apex Court has considered the question as to whether acquired land can be treated to have vested in the State Government under Section 16 of the Land Acquisition Act, 1894 on the making of an award with the Collector though, the actual and physical possession continues with the landowner. Paragraphs 10 and 16 of the said judgement being relevant are extracted hereinbelow: "10. We have given our serious thought to the entire matter and carefully examined the records. Section 16 lays down that once the Collector has made an award under Section 11, he can take possession of the acquired land. Simultaneously, the section declares that upon taking possession by the Collector, the acquired land shall vest absolutely in the Government free from all encumbrances. In terms of the plain language of this section, vesting of the acquired land in the Government takes place as soon as possession is taken by the Collector after passing an award under Section 11. To put it differently, the vesting of land under Section 16 of the Act presupposes actual taking of possession and till that is done, legal presumption of vesting enshrined in Section 16 cannot be raised in favour of the acquiring authority. 16. The same issue was recently considered in C.A. No. 3604 of 2011 - Banda Development Authority, Banda v. Moti Lal Agarwal decided on 26.4.2011. 16. The same issue was recently considered in C.A. No. 3604 of 2011 - Banda Development Authority, Banda v. Moti Lal Agarwal decided on 26.4.2011. After making reference to the judgments in Balwant Narayan Bhagde v. M.D. Bhagwal (supra), Balmokand Khatri Educational and Industrial Trust v. State of Punjab (supra), P.K. Kalburqi v. State of Karnataka (supra), NTPC v. Mahesh Dutta (supra), Sita Ram Bhandar Society v. Government of NCT, Delhi (supra), Omprakash Verma v. State of Andhra Pradesh (supra) and Nahar Singh v. State of U.P., (1996) 1 SCC 434 , this Court laid down the following principles: "(i) No hard and fast rule can be laid down as to what act would constitute taking of possession of the acquired land. (ii) If the acquired land is vacant, the act of the concerned State authority to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession. (iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the concerned authority will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the concerned authority will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken. (iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document. (v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the Court may reasonably presume that possession of the acquired land has been taken." 25. (v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the Court may reasonably presume that possession of the acquired land has been taken." 25. The principles underlined by the Apex Court in the case of Prahlad Singh (supra) are to be kept in mind while adverting the issue as to whether possession of the suit property was taken over by the KDA. 26. In the present case, the trial Court has relied upon the written statement and the award No. 24 dated 27.9.1961 filed by KDA in Original Suit No. 814 of 2000 in returning a finding that possession of the suit property had been taken by the KDA. The revision Court found that there was no evidence on record in the present suit to demonstrate that the actual physical possession of the suit property had been taken by the KDA; accordingly, it set aside the finding of possession recorded by the trial Court on the ground that the approach of the trial Court was erroneous in relying upon the written statement and evidence filed by KDA in Original Suit No. 814 of 2000 in absence of any evidence on record in the present suit wherefrom it can be evinced that the possession of the suit property had been taken by KDA. 27. According to the petitioner, the acquisition was of a large tract of land in the instant case is evident from the written statement and the award No. 24 dated 27.9.1961 filed by KDA in Original Suit No. 814 of 2000, and the symbolic possession of the suit property had been taken by the authority is also evident from the possession memo dated 28.2.1973, therefore, the present case falls within the ambit of paragraph 16 (iv) of the judgement of the Apex Court in the case of Prahlad Singh (supra), and as such, the finding of revision Court that the petitioners have failed to prove that the KDA had taken the possession of the suit property is illegal and contrary to the record. 28. 28. To determine that the present case falls within the ambit of paragraph 16 (iv) of the judgement of Prahlad Singh (supra), the first issue which crops up for determination is whether the large tract of land was acquired by the authority and if so, the possession of the land has been taken in the manner envisaged by the Apex Court in Paragraph 16(iv) of Prahlad Singh (supra). In the instant case, it is explicit from the perusal of the two written statements filed by the petitioners that no factual foundation has been laid by the petitioners that large tract of land was acquired by the KDA and the possession of the land was taken by the KDA in the manner prescribed in paragraph 16(iv) of the judgment of the Apex Court in the case of Prahlad Singh (supra). The said issue being an issue of fact can be decided only on the basis of pleading and evidence on record which in the instant case is lacking. Further, it also transpires from the record of the writ petition that the certified copy of possession memo dated 28.2.1973 filed as Annexure 8 is obtained from the record of Original Suit No. 252 of 2000 which is yet to be proved by the KDA as per law in that suit, and the issue as to whether possession of the suit property had been taken by the KDA is yet to be adjudicated upon by the competent Court in Original Suit No. 252 of 2000, consequently, the possession memo cannot be relied upon in the present suit to consider the issue that possession of the suit property is with KDA. 29. In the case in hand, indisputably building exist on the land alleged to have been acquired by KDA. Therefore, the procedure provided in Paragraph 16(iii) of Prahlad Singh's case (supra) is to be complied with for taking possession of the land. No evidence or material on record was brought to the notice of the Court which indicates that any notice was given by the KDA to the respondents and possession of the land was taken in the presence of independent witnesses and panchanama was prepared taking the signatures of the independent witnesses, therefore, it is not established from the record of the case that the procedure envisaged in Paragraph 16(iii) of Prahlad Singh's case (supra) for taking possession was complied with. Consequently, this Court finds that the finding of the revision Court on the issue that possession of suit property had been taken by KDA is not proved is correct and based on the proper appreciation of material on record. However, it is clarified that the observation made hereinabove about possession of the suit property would not prejudice the rights of the parties in Original Suit No. Original Suit No. 252 of 2000. 30. Accordingly, given the above discussion, this Court does not find any substance in the submission of counsel for the possession that the present case falls within the compass of Paragraph 16(iv) of Prahlad Singh's case (supra). 31. Thus, for the reasons given above, this Court does not find any good ground to interfere with the judgement of the revision Court. Consequently, the writ petition lacks merit and is dismissed with no order as to costs.