Judgment 1. This second appeal is by the plaintiffs against the judgment of affirmance. 2. The plaintiffs filed a suit for declaration of title and recovery of possession over a piece of land measuring 1 katha 10 dhurs of plot No. 71, pertaining to khata No. 7 of village Chhoti Narai, Dist. Vaishali. The plaintiffs also prayed for mesne profits. Alternatively the plaintiffs prayed for recovery of Rs. 8,000/-covered by the sale deed (Ext. 1) dated 8-9-73 from defendant 2nd party namely, Subh Narain Ojha. 3. The plaintiffs case was that one Jamuna Singh was the original owner of plot No. 71 measuring 5 kathas 15 dhurs. Jamuna Singh mortgaged the said plot in favour of Laldhari Ojha (defendant No. 1) and Ram Charitra Ojha (defendant No. 5) for a sum of Rs. 463/- by a mortgage deed dt. 4-10-1934. Thereafter on 23-6-1943 Jamuna Singh sold the aforesaid plot to Subhnarain Ojha (defendant No. 4) and Bulla Ojhaen (defendant No. 5) (widow of Ram Charitra Ojha) for a sum of Rs. 600 equity of redemption. Out of this consideration money Rs. 463 was kept in deposit with the vendees for making payment to the mortgagee and Rs. 137/- was paid to the vendor in cash. According to the plaintiffs subsequently the vendees redeemed the mortgage by making the payment of the mortgage money and then they came in possession over the land. According to the plaintiffs thereafter a partition between Subhnarain Ojha (defendant No. 4) vendees by sale deed dt. 23-6-1943) took place and according to the plaintiffs, Subhnarain Ojha (defendant No. 4) got 1 Katha 10 dhurs on the southern side and some land on the northern side and Bulla Ojhaen (defendant No. 5) got the remaining land over which they came in possession accordingly. 4. The plaintiffs" further case was that Subhnarain Ojha (defendant No. 4) who had got the disputed area of the plot in question on partition, sold the disputed land i.e. 1 katha 10 dhurs by a registered sale deed (Ext. 1) for Rs. 8000.00 to the plaintiffs who paid Rs. 7500/-to the vendor before the execution and Rs. 500.00 at the time of the exchange of the equivalents. The plaintiffs" case was that after the sale deed was executed in their favour, they came in possession over the same. 5. 1) for Rs. 8000.00 to the plaintiffs who paid Rs. 7500/-to the vendor before the execution and Rs. 500.00 at the time of the exchange of the equivalents. The plaintiffs" case was that after the sale deed was executed in their favour, they came in possession over the same. 5. According to the plaintiffs, a proceeding under S.144 of the Code of Criminal Procedure was started which was made absolute against the plaintiffs and the plaintiffs were dispossessed on 1-6-1974. 6. The plaintiffs" case further was that Subhnarain Ojha (defendant No. 4) had paid the consideration money from his own fund and that neither Laldhari Ojha (defendant No. 1) nor Ram Charitra Ojha (husband of defendant No. 5) paid any consideration money. According to the plaintiffs, the defendant 1st party and the 2nd party lived in the same house and defendant No. 1 took away the mortgage deed and the original sale deed from the custody of defendant No.2. Plaintiffs" further case was that as per the condition in the sale deed dt. 8-9-1973 in their favour, there was a stipulation to the effect that in case of any defect in the title of the vendor, the plaintiffs would be entitled to realise the consideration amount with interest from defendant No. 2. 7. The order in the proceeding under S.144 of the Code of Criminal Procedure having gone against the plaintiffs, and the plaintiffs having been dispossessed, the plaintiffs filed the present suit. Defendant No. 1 (Laldhari Ojha) died soon after the filing of the suit. 8. The suit was contested by defendant No. 2 who filed the written statement. The defence was that Ram Charitra Ojha (husband of defendant No. 5) and Janak Ojha and Laldhari Ojha were full brothers, but Janak Ojha had separated from the other two brothers. Janak Ojha later died issueless. Ram Charitra Ojha (husband of defendant No. 5) and Laldhari Ojha (defendant No. 1) remained joint. Later Ramcharitra Ojha also died issueless leaving behind only his widow Bulla Ojhaen (defendant No. 5). 9. According to the contesting defendants, Jamuna Singh the original owner of the plot in question had taken Rs. Janak Ojha later died issueless. Ram Charitra Ojha (husband of defendant No. 5) and Laldhari Ojha (defendant No. 1) remained joint. Later Ramcharitra Ojha also died issueless leaving behind only his widow Bulla Ojhaen (defendant No. 5). 9. According to the contesting defendants, Jamuna Singh the original owner of the plot in question had taken Rs. 463/- as loan from Ramcharitra Ojha and Laldhari Ojha and Jamuna Singh gave the plot in dispute in Ijara by a registered deed dated 4-10-1934 which stood in the name of Laldhari Ojha (defendant No. 1) and Ramcharitra Ojha (husband of defendant No. 5). According to the contesting defendants, subsequently the original owner Jamuna Singh sold the said land to them by a registered sale deed dt. 23-6-1943 for a consideration of Rs. 600.00 out of which Rs. 463/- was set off against the mortgage amount and Rs. 137/- was paid in cash. This sale deed, according to the contesting defendants was taken in the names of Subhnarain Ojha (defendant No. 4) and Bulla Ojhaen (defendant No. 5) who, in fact, never paid any consideration amount nor did they ever come in possession. According to the contesting defendant Subhnarain Ojha (defendant No. 4) never required any money and, he, in fact, did not sell the land in suit by the sale deed dated 8-9-1973. According to the contesting defendants no consideration passed under the said sale deed. According to defendant, Subhnarain Ojha was not separate from his father Laldhari Ojha at the time of the execution of the sale deed dated 23-6-1943. According to the contesting defendants, there was a private partition between Ram Charitra Ojha (husband of defendant No. 5) and Laldhari Ojha (defendant No. 1) and by private partition the northern half was allotted to Ram Charitra Ojha and southern half was allotted to Laldhari Ojha (defendant No. 1). According to the defendants Ramcharitra Ojha died in 1979 and his wife Bulla Ojhaen came in possession of the northern half of the plot in question and she executed a deed of gift in favour of Ramakant Ojha (defendant No. 2). According to the defendants, Laldhari Ojha (defendant No. 1) also gifted the southern half of the plot to Rajesh Chandra Ojha (defendant No. 3 Ka) (son of Ramakant Ojha defendant No. 2) who also came in possession as donee. 10. According to the defendants, Laldhari Ojha (defendant No. 1) also gifted the southern half of the plot to Rajesh Chandra Ojha (defendant No. 3 Ka) (son of Ramakant Ojha defendant No. 2) who also came in possession as donee. 10. According to the contesting defendants Laldhari Ojha (defendant No. 1) and Ramcharitra Ojha (husband of defendant No. 5) had acquired the aforesaid land from their separate income and not from the joint family income. 11. Bulla Ojhaen (defendant No. 5) also filed a written statement supporting the case of the contesting defandants 1st party. It is pertinent to state here that the vendor of the plaintiffs i.e. Subhnarain Ojha (defendant No. 4) did not file any written statement. 12. Thus, the short point for consideration by the courts below was whether the suit plot was purchased by Laldhari Ojha (defendant No. 1) and Ramcharitra Ojha (husband of defendant No. 5) in the Benami names of Subhnarain Ojha (defendant No. 4) and Bulla Ojhaen (wife of Ramcharitra Ojha) (defendant No. 5) or the suit plot was purchased by Subhnarain Ojha and Bulla Ojhaen in their own right. 13. The trial court dismissed the suit and held that the real purchasers were Ramcharitra Ojha and Laldhari Ojha and Bulla Ojhaen and Subhnarain Ojha (wife and son respectively of Ramcharitra Ojha and Laldhari Ojha) were mere name lenders. It also held that the plaintiffs had failed to establish the claim of passing of consideration to Subhnarain Ojha. It further held that the plaintiffs had failed to establish the story of alleged possession and dispossession. The trial court held that the plaintiffs or their vendor had never any subsisting possession, as alleged. 14. Against the judgment and decree of the trial court, the plaintiffs preferred an appeal. The lower appellate court dismissed the plaintiffs appeal and affirmed the judgment and decree of the trial court. It held that Laldhari Ojha and Ramcharitra Ojha were the real purchasers and Subhnarain Ojha and Bulla Ojhaen were mere Benamidars. Thus, the lower appellate court affirmed this finding of the trial court. In view of the finding given by the lower appellate court as just mentioned above, the lower appellate court held that in that view of the position, the plaintiffs cannot be said to have acquired any right or title or interest over the disputed land on the basis of the sale deed dt. 8-9-1973 (Ext. In view of the finding given by the lower appellate court as just mentioned above, the lower appellate court held that in that view of the position, the plaintiffs cannot be said to have acquired any right or title or interest over the disputed land on the basis of the sale deed dt. 8-9-1973 (Ext. 1) and they were not entitled to the relief asked for. The lower appellate court further held that no consideration money was paid to Subhnarain Ojha after the sale deed was executed in favour of the plaintiffs. It further held that the plaintiffs never came in possession over the disputed land at any time after the execution of the sale deed. The lower appellate court further held that the sale deed dt. 8-9-1973 executed by Subhnarain Ojha (defendant No. 4) in favour of plaintiff No. 1 was a fictitious one and it did not convey any title to the plaintiffs. The lower appellate court, in view of the aforesaid findings, further also negatived the alternative relief of the plaintiffs and held that the plaintiffs were not entitled for a decree for recovery of consideration amount, amounting to Rs. 8000.00 which is said to have been paid to Subhnarain Ojha. 15. With the aforesaid findings, the lower appellate court dismissed the plaintiffs" appeal. 16. The learned Counsel for the plaintiffs appellants has advanced only one submission and that is to the effect that the plaintiffs being bona fide purchasers for value in good faith from the ostensible owner was protected in law under S.41 of the T. P. Act and not only that they were entitled for a declaration of title and recovery of possession but even failing that, they were entitled in law for the refund of the consideration amount of Rs. 8000.00 which was paid to their vendor Subhnarain Ojha. 17. No other point was canvassed by the learned Counsel for the plaintiffs appellants. 18. In order to appreciate the legal submission advanced by the learned Counsel for the plaintiffs, it is desirable to quote S.41 of the T. P. Act:- "41. 8000.00 which was paid to their vendor Subhnarain Ojha. 17. No other point was canvassed by the learned Counsel for the plaintiffs appellants. 18. In order to appreciate the legal submission advanced by the learned Counsel for the plaintiffs, it is desirable to quote S.41 of the T. P. Act:- "41. Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfer the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith". 19. The principles of S.41 of the T. P. Act are really the law on the subject of equitable estoppel. This section is an exception to the general rule that a person cannot convey a better title than he himself has in the property. The conditions set-forth in the section must, therefore, be strictly complied with. Under the proviso to S.41, the transferee must show that after taking reasonable care to ascertain that the transferor had power to make the transfer, he acted in good faith. The care that is required to be taken under this Proviso is one that is accepted by an ordinary prudent man of business. It is a question of fact and depends upon the circumstances of such case. A refusal to enquire about the question of title deeds and to rest content with one evidence or the other as for, I may explain that entry in the record of right, gives no protection to the transferee. 20. In the light of the aforesaid principles of law, I will deal later whether in the instant case, the appellants-transferees are protected under S.41 of the T. P. Act. There is yet another settled principle that if the plea of being a bona fide purchaser in good faith from the ostensible owner is not taken in the written statement and no issue is framed, the appellate court should not allow the plea to be taken for the first time at the appellate stage. The plea being a plea in equity, it is not open to raise when it was abandoned at the trial stage. The plea being a plea in equity, it is not open to raise when it was abandoned at the trial stage. If reasonable care is not taken to enquire about the title, the purchaser is not protected under S.41 of the T. P. Act. There is yet another settled principle of law that if the purchaser is a neighbour, he is charged not with enquiry but with notice and knowledge of title and, in such cases, the court should be slow to believe in good faith of the transferee. There is yet another well settled principle of law that if possession with the vendor is in his own right and not as an agent of anybody else, the possession is a constructive notice to the transferee and S.41 does not protect a transferee who claims protection under the section. 21. In the present case, though it will bear repetition, the short point for consideration was whether the suit plot was purchased by Laldhari Ojha and Ramcharitra Ojha in the Benami names of Subhnarain Ojha and Bulla Ojhaen or the suit plot was purchased by Subhnarain Ojha and Bulla Ojhen in their own right. Both the courts on a detailed and a very proper appraisal of the evidences, both oral and documentary, have concurrently held that Subhnarain Ojha and Bulla Ojhaen were merely Benamidars and the real purchasers were Laldhari Ojha and Ramcharitra Ojha. Both the courts below have gone into the question of Benami. The onus to prove that the transaction was Benami is on him who sets it. Mere suspicion is no evidence to hold any transaction to be a Benami one. There should be direct evidence to prove the same. Several High Courts including Patna High Court have laid down the guidelines which should be determining factor for coming to a finding whether the transaction was a Benami one or not. The learned counsel for the respective parties have taken me through the judgments of the courts below in detail and I am satisfied that both the courts below have taken great pains to deal each of the guidelines i.e. motive, consideration, custody, possession sources and relationship. On each count, the courts below have gone in detail and have negatived the plaintiffs" case and accepted that of the contesting defendants. On each count, the courts below have gone in detail and have negatived the plaintiffs" case and accepted that of the contesting defendants. The learned Counsel for the appellants has not drawn my attention to any of the material evidence on the record which has not been considered by the courts below. Thus, I hold that the concurrent finding to the effect that Subhnarain Ojha and Bulla Ojhaen were merely Benamidars, is neither unreasonable nor perverse. 22. The learned counsel appearing for the appellants has not shown any material to show that the plaintiffs had taken reasonable care to ascertain that the transferor had power to make the transfer and that after taking such a reasonable care, the plaintiffs had acted in good faith. It seems to me that if the plaintiffs had made a reasonable enquiry in order to avail the provisions of S.41 of the T. P. Act, they would have discovered that their vendor was not in possession but the possession of the land was with Laldhari Ojha and Ramcharitra Ojha, as concurrently found by both the courts below. This should have put the plaintiffs on guard and they should be regarded as having constructive notice that what appeared on the surface as ownership in Subhnarain Ojha was not the true position. If plaintiffs failed to take necessary steps to clear up the position, it could not be said that they had made a reasonable enquiry or had acted in good faith. On the materials on record I am satisfied that the plaintiffs did not take care as was required of an ordinary prudent man. 23. There is still another legal difficulty for the appellants. The learned counsel for the plaintiffs-appellants has not drawn my attention to any paragraph of the plaint to show that the plaintiffs had taken the plea of being a bona fide purchaser in good faith from the ostensible owner. No issue even was framed by the trial court. Neither before the trial court nor before the lower appellate court, the plaintiffs took the stand of having a protection under S.41 of the T. P. Act. The plaintiffs appellants have for the first time submitted as such before me. In this view of the matter, the plaintiffs appellants cannot be allowed to take such a plea for the first time at this stage. The plaintiffs appellants have for the first time submitted as such before me. In this view of the matter, the plaintiffs appellants cannot be allowed to take such a plea for the first time at this stage. The plea of being a bona fide purchase in good faith from ostensible owner being a plea in equity, it cannot be allowed to be raised when it was abandoned at the trial stage. 24. The lower appellate court, on a detailed discussion of the evidences on the record, has held that no consideration amount, whatsoever, was paid by the plaintiffs to the vendor with regard to the sale deed dt. 8-9-1973 (Ext. 1). 24A. I have gone through the judgment under appeal in detail and I hold that this finding is based upon a very proper appraisal of the evidences on the record and it is not unreasonable or perverse. In view of this finding which is a good finding on fact, I also hold that the lower appellate court very correctly refused to grant a decree for the alternative relief as well. If, in fact, no consideration amount passed, as has been concurrently held by the courts below, the plaintiffs appellants are not entitled to the refund of the consideration amount, as claimed. In view of my findings as above, I hold that there is no force in the submission advanced by the learned counsel for the appellants. 25. In the result, this appeal is dismissed. However, in the circumstances of the case, there will be no order as to costs.