A plea of protection under Section 41 of the Transfer of Property Act must be clearly taken in the pleadings and put in issue between the parties.

( 1 ) THE property in litigation belonged originally to Mangrulal Ahir. The plaintiff's case is that on Mangruyal's death, his widow and minor sons, defendants Nos. 3 to 7, became owners of the land as his heirs. The plaintiff purchased this property from defendants Nos. 3 to 7 by a kobala dated the 12th July 1948. In the meantime, on the 1st April 1946 defendant No. 1 had obtained a lease from Kanai Lal Ahir in respect of the land described in Schedule B of the plaint, forming part of the property left by Mangiulal. Kanai Lal executed that deed of lease on behalf of himself and also as guardian of Keshab Prasad Ahir, defendant No. 3. After obtaining the lease, defendant No. 1 filled up the tank in the land of Schedule B and also erected a structure. In that lease, Kanai Lal described himself as the son of Mangrulal Ahir. The plaintiff's case is that Kanailal was not Mangrulal's son but was the son of Mangrulal's wife Babuna by a former husband. He had, therefore, no interest in the land and defendant No. 1 acquired no interest by the lease. The plaintiff prayed for a declaration of his title to the land described in Schedule B, a declaration that the deed of lease was void and not binding upon the plaintiff, a declaration that defendants Nos. 1 and 2 had no interest in the land in suit and for a permanent injunction restraining the defendants Nos. 1 and 2 from exercising any right therein and also for delivery of khas possession and mesne profits and damages.

( 2 ) THE main defence was that Kanailal and Keshab Prasad were the only sons of Mangrulal and defendants Nos. 4 to 6 were not his sons. It was pleaded that the plaintiff had acquired no title by his purchase, and that defendant No. 1 had acquired good title by the deed of lease. It was further pleaded that in any case as the plaintiffs predecessors, the sons and widow of Mangrulal, had Kept quiet when they saw her improving the land and erecting the structure, the plaintiff should not be allowed to obtain possession of this land.

( 3 ) THE trial court accepted the plaintiffs case that Kanailal was not Mangrulal's son and had, therefore, no interest in the land and that by the lease no interest in the property was acquired by defendant No. 1. It held further that defendants Nos. 3 to 7 were the rightful heirs of Mangrulal and the plaintiff acquired good title to the land by his purchase. The learned Subordinate Judge rejected the contention that the plaintiff was not entitled to obtain possession of the land because of the conduct of his vendors but thought that equity demanded that the plaintiff should pay Rs. 2000/-as compensation money to defendant No. 1 in respect of the improvement made by the latter in filling up the tank in this property. He accordingly, decreed the suit subject to this that the "plaintiff would have to pay a sum of Rs. 2000/- to defendant No. 1 in respect of the improvement. Defendant No. 1 was also ordered to remove the structure made by her upon the land within a month from the date of the order, failing which it was ordered that the plaintiff was entitled to remove the same by execution of the decree.

( 4 ) ON appeal, the learned District Judge affirmed all the findings of the trial court and dismissed the appeal. He gave a direction that the appellant, defendant No. 1, would have to remove the structure standing on the suit land within two months from the date of his order and in default, the plaintiff respondent would be entitled to remove the same by execution.

( 5 ) THE first contention raised in this second appeal before us was that the defendant No. 1 was entitled to protection of Section 41 of the Transfer of Property Act. That section provides:"where, with the consent, express or implied. , of the person interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authori