1. The litigation which has given rise to this appeal arises under the Agra Tenancy Act. It appears that Ramjit, the defendant-respondent before us, was a non-occupancy tenant of a certain holding of which the owner was the plaintiff-appellant, Raja Surajpal Singh, the Raja of Avagarh. It is admitted that the plaintiff, as zimindar, took steps under Sections 58 and 63 of the Agra Tenancy Act, Act 2 of 1901, to eject the defendant Ramjit. The zamindar got a decree for ejectment, and on 26th September 1922, the zamindar was awarded possession. At p. 27 of the record there is the dakhalnama showing the delivery of possession to the zamindar. The entire holding was one of 27 bighas odd of which 22 bighas odd were held by sub-tenants. It seems that out of this area an area of 18 pakka bighas was under rose cultivation. These lands are situated in a part of the Aligarh district where the industry of rose growing for purposes of perfumery is well established.

2. Having got a decree for ejectment there were two courses open to the landlord. Under Section 75(1) of the Tenancy Act, it is provided that if at the date on which ejectment takes effect there are ingathered crops or other products upon the land, the landholder shall have the option of purchasing the same, and upon his forthwith tendering the price of the same to the tenant, the right of the tenant to such crops or other products and to use the land for the purpose of tending, gathering and removing the same shall cease. Sub-S. 2 of the same section provides that if the landlord does not elect to purchase the ungathered crops, the tenant shall be entitled to use the land as aforesaid for a further period until such orops or other products have been gathered and removed paying a fair rent therefor.

3. In the present case the landlord exercised his option under S. 75(1) of the Act and so it became necessary to determine the amount which the landholder was liable to pay for the ungathered crops or other products. The landlord apparently made an application to the Court offering Rs. 43-6-0 as being an adequate compensation for the ungathered products. This offer was contested, the defendant Ramjit putting forward the case that he had a very valuable crop for which he was entitled to demand compensation to the tune of Rs. 20,000. The Case was eventually decided in the Court of a first class Assistant Collector, Mr. Mahadeo Prasad. He was of opinion that the landholder was bound to pay Rs. 12,000 compensation for the rose crops. Prom this he deducted a certain amount which was due to the landlord for arrears of rent and made the Raja liable to pay to Ramjit the sum of Rs. 11,338-14-10. It was argued before us that the procedure of the Assistant Collector was wrong and that he had acted on a wrong system of Valuation, and indeed the contention was put forward in the course of the argument that it was open to the landlord, after the amount of compensation had been determined, either to pay that amount or to allow the tenant to remove the ungathered products. This argument, however, cannot be accepted for it seems perfectly plain to us that the landlord is bound to exercise his option under Section 75 of the Tenancy Act, before he comes into Court to make an offer or to apply for immediate possession of the lands; and we are clear that if the option is once exercised the landlord cannot resile from it. Here, as we have said, the landlord came into Court and exercised the option of purchasing the ungathered crops. Having done that he was bound by his choice.

4. There remains the question of the valuation. It seems that at first the parties agreed to the appointment of a commissioner, a gentleman named Thakur Bijay Singh, on whose report they both thought they could rely. Bijay Singh inspected the place and heard certain evidence produced by the parties. His report is printed at p. 19 of the record and it is clear that he had some diffculty in making up his mind as to the amount he was prepared to assess by way of compensation. However, he adopted a system of calculation which he explains in his report and at p. 20 we find that he came to the conclusion that Rs. 1,950 would be a suitable compensation for the defendant Ramjit.

5. Both parties were dissatified with the ommissioner's report and ultimately the case was referred to the Court of Mr. Mahadeo Prasad, the Assistant Collector who has finally decided it. We may remark here that at one stage of the case Ramjit, the defendant, offered to let the case be decided by the Raja himself and the papers were sent to him but the Raja, very properly, in our opinion, declined to give a decision in a case in which he was interested himself.

6. The learned Assistant Collector seems to us to have tried various ways in which the amount of compensation for these rose trees should be assessed. It is complained here that he based his decision in part, at any rate, upon two decisions which are said to have been passed awarding compensation for rose crops in this village of Barwana. In his judgment the learned Assistant Collector refers to two cases, Nos. 5 and 6 of mouza Barwana, which were decided on 19th March 1924. It is complained here that these cases-should not have been considered and it is also made a matter of complaint that there is no trace of one of the cases to which the learned Assistant Collector refers. As am alternative method of assessing the value of the rose trees the learned Assistant Col lector, finding that there were 60,000 rose bushes on this holding, assessed them at an average value of 4 annas each on which basis the compensation would come to Rs. 15,000. Then he tried another method of assessment by taking into account the average annual profit derived from the sale of rose flowers. Eventually by a combination of all these methods he arrived at a decision that Rs. 12,000 represented a fair amount as due.

7. We think that the decision of the Assistant Collector is open to attack on the ground suggested, namely, that he did not follow a proper method of valuing the crop. We refer here to a case decided by the Board of Revenue in the year 1892, a case which, as far as we know, has been, followed ever since. Abdul Baki v. Mathura Prasad . [1893] A.W.N 24.. There again the case was one of a holding on which roses were being grown for the purpose of making perfumery, and it was held by both members of the Board that for purposes of awarding compensation the value not merely of the flowers of the rose bushes for one year but of the bushes themselves was to be taken into consideration. Mr. Kaye, the Junior Member, said that as rose plants, once they were planted, lasted for many years, it would be inequitable to give compensation only for the flowers that might be on the trees at the time of ejectment. Incidentally we may observe here that as the ejectment in this case took place in September 1923, there could not have been any crops of rose blooms ready at that time.

8. Mr. Reid, the Senior Member, in the judgment just referred to, laid down the same principle. He said that rose and jasmine plants go on bearing flowers for several years and possess a value for the cultivator as long as they do so. He laid down as the principle to be adopted in determining compensation that the price of the plants as growing crops was to be estimated at their present value to the cultivator of the land with reference to their age, condition and prospective flower producing capability.

9. That case has been followed by a Bench of this Court in the case of Ram Prasad v. Suba Rai . [1910] 32 All. 458.

10. It seems to be well established in the present case that the rose plantation which was in the possession of the defendant and his sub-tenants was in good condition. When Thakur Bijay Singh made his report on 26th September 1924, he said that the crop was in good condition except one field the area of which he took to be about 8 bighas kham. A similar inspection note was recorded by the Assistant Collector himself. This is to be found at p. 21 of the record. We think we ought to take it, therefore, that the rose plaints were in good condition and were capable of bearing a good crop. It is true that Ramjit admitted in his deposition that the plants had been planted over 30 years ago. It is doubtful, however, whether he meant by this statement that every bush standing on the 18 bighas under rose cultivation was planted at that time or whether he meant only that the plantation had been begun 30 or 35 years before these proceedings. However that may be, we think it ought to be assumed now that the plants were in good condition and capable of producing a full crop.

11. The only way in which we can have this case decided is by remitting an issue to the Court below and both parties ought to be allowed to give such evidence as they can put forward. The Assistant Collector will, after taking this evidence, come to a finding as to the value of the rose plants at the time ejectment proceedings took effect and in coming to his conclusion he will be guided by the principle laid down by the Senior Member of the Board of Revenue in Abdul Baki's case above referred to, namely, that he has to ascertain their present value to the cultivator of the land with reference to their age, condition and prospective flower producing capability at the material date. The finding ought to be returned to us within two months and after the return of the finding ten days will be allowed to the parties for objections.

[On receiving the findings their Lordships delivered the following judgment]

JUDGMENT

12. The facts of this case are stated in the order of 21st November 1927, by which an issue was remanded to the Court below. We directed the Assistant Collector to come to a finding as to the value of the rose plants at the time the ejectment proceedings took effect. This has now been done and the learned Assistant Collector has found this value to be Rs. 14,900. Objections have been taken to this by the appellant. The first point taken by the learned advocate for the appellant is that the value of the rose plants should be estimated as on 31st May 1926, the date on which the appellant obtained actual possession of the land in execution of a decree of the civil Court in his favour awarding him possession and mesne profits. In support of this contention the learned advocate for the appellant has referred to the case of Ishwari Prasad v. Dulhin Gunjeshwari Devi, A.I.R 1927 Pat. 422. His contention is that as the date on which the Assistant Collector originally assessed the value of the rose plants and at the date when the issue remanded was tried, his client had given evidence that the defendant, Ramjit, was in possession of the rose plants until 31st May 1926, and the condition of the plants was not good, he is entitled to claim that by reason of the wrongful act of Ramjit it was necessary to base the decision of the Court on the altered circumstances, that is, as on 31st May 1926, in order to do complete justice between the parties. The ordinary rule is that a suit must be tried in all its stages on the cause of action as it existed at the date of its commencement. No doubt exceptions had been recognized in a number of cases which will be found mentioned at p. 108 of 20 Calcutta Law Journal, but in each of those cases there were special circumstances and the doctrine that events that had-happened after the date of the commencement of the cause of action can be taken into consideration, is of an exceptional character and is applied in cases where the original relief has become inappropriate. We are of opinion that the present case is not one which comes within the exception. The plaintiff cannot show that even on the date when the decree was passed by the Court of first instance, the defendant, Ramjit, had done anything to alter or damage the rose plantation; in fact a reference to the report of Kr. Bijai Singh, dated 26th September 1924, and the inspection note of the Assistant Collector dated 9th November 1924, shows that all the rose crop was in good condition, except a field the area of which was about eight bighas.

13. The next point urged by the learned advocate for the appellant is that in the present action by the plaintiff all that the defendant was entitled to was the price of the rose crops that he would get if he took them out and took them away. We may mention that the matter was referred in the order of 21st November 1927 and we see no reason to take a different view. In that order we referred to a ruling of the Board of Revenue of the year 1892, and as far as these provinces are concerned, that is the law that has been understood ever since and was affirmed by a Bench of this Court in the case of Ram Prasad v. Suba Rai; referred to in that order. We directed the Assistant Collector that in arriving at the value of the rose plants he was to ascertain the value to the cultivator of the land with reference to age of the rose plants, the condition, and the prospective flower-producing capability on the date when the ejectment proceedings took place. The Assistant Collector has, therefore, very rightly stated the points which he had to determine at p. 10 of the supplementary record under three heads, namely, the age of the plants at the time of ejectment, the condition of these plants, and the prospective flower-producing capacity at that date. As regards the first point he has found that the age of these plants was 26 years on 26th September 1923. As regards the condition of the plants he has found that the condition was good except as to eight bighas. He found that the average produce of a bigha kham of this plantation was seven maunds. As regards the third point, namely, the average flower-producing capability at that date, he found that for the first three years after the ejectment the average produce would be seven maunds, four to six years after ejectment five maunds, and seven to nine years three maunds, per bigha. He, therefore, took the average of the 46 bighas in each of these nine years to be five maunds. After deducting the annual cost of cultivation, which he held to be Rs. 22 per bigha, and the rent, he came to the conclusion that the annual net value of the rose plants to the defendant was Rs. 36 per bigha.

14. The learned advocate for the appellant contests each one of these points and he has taken us through the evidence in great detail. We may state at the outset that we think that on the whole the way in which the learned Assistant Collector has assessed the damages is not unfair to either party, but we will proceed to examine in detail as to whether the figures given by him in each case are correct. The first point for determination therefore is as to what was the age of the plants at the time of ejectment. It appears tons that the evidence called on behalf of the plaintiff proves that the land was given to defendant 26 years before the date of ejectment, after the ejectment of one Sukh Ram Aheria and when the land was given to the defendant there was rose plantation of 17 kham bighas of land. The learned Assistant Collector has referred to the settlement khatauni and has come to the conclusion that the rose plants could not have been more than the period of the tenancy, of the defendant, namely, 26 years. We agree with him except as to the 17 bighas kham referred to in the statement of Risal Singh. The defendant himself at pp. 10 and 11 has stated that he planted the rose trees 28 or 30 years ago, in his examination-in-chief, and that the rose tree were planted 30 or 35 years ago, in his cross-examination. We think that both the statements of the defendant can only be explained on the hypothesis that as regards the 17 bighas kham of land the rose trees were planted 35 years ago and as regards the others they were planted after he got the land from the zamindar. We therefore find that the rose plantation on 17 bighas was 35 years old on 26th September 1923, and the age of the other plantation was 26 years. Mr. Dar has questioned, as we have stated, the condition of the plants. The evidence that has been referred to by him cannot be entirely relied on, because if that evidence was literally taken to be true, it would prove that even before the ejectment proceedings taken by the plaintiff-appellant the rose plants were in a very bad condition. We have no reason to disbelieve the report of the commissioner and the result of the inspection in November 1924, by the Assistant Collector, and there is nothing to show that up to the date when the decree was passed by the Court of first instance, namely 3rd January 1925, the condition of the rose plants was anything but good. No doubt the inspection note shows that eight bighas were in bad condition in November 1924, and it may be that the evidence of the witnesses really relates to these eight bighas without reference to the rest of the land. We therefore are of opinion that the learned Assistant Collector was right in ignoring the produce of the eight bighas out of the 54 bighas.

15. In a case where the yield of rose is to be calculated many years after the material date, a Court cannot but work out averages, as the learned Assistant Collector has done, and we affirm the finding of the learned Assistant Collector that 35 years is to be taken as the average age up to which these rose plants could give results that would mean a real source of profit to the cultivator. Another reason why average has to be taken is that the yield from a rose plant is not uniform in every year and the chances of bad years for the cultivator have also to be taken into account. The result therefore is that, taking the age of the rose plant at 35 years, the average produce at the material date should be taken to be five maunds per bigha, and nine years as the period which would give a real profit to the cultivator to cultivate these rose plants. We therefore find that in 17 bighas the rose plants cannot be taken into account in computing the value of the land to the cultivator on 26th September 1923. The eight bighas must, in our opinion, be included in the 17 bighas which we have held contained rose plants 35 years old, otherwise there does not seem to be any reason why on the eight bighas there were poor rose plants when the Assistant Collector in November 1924, examined the land.

16. The learned Assistant Collector has given good reasons for coming to the conclusion that 60 per bigha khanr should be taken as the gross income to the cultivator.

17. We are however unable to accept the deductions made by the learned Assistant Collector. He states that the plaintiff has not produced any evidence regarding the annual cost of production, but in our opinion it was unnecessary for the plaintiff to produce any evidence if the plaintiff accepted the statement of Ramjit. We find that Ramjit in his statement on 28th February 1904, stated that Rs. 25 or 30 were regularly spent on one bigha of land. We are of opinion that it is unlikely that Ramjit would be exaggerating the amount of money that he would have had to spend per bigha. We therefore accept the figure of Rs. 30 as given by Ramjit as the annual expenses of cultivation per bigha. To this has to be added the sum of Rs. 2 per bigha as the rent of the land and the net value of the rose plants, therefore, comes to Rs. 28 per bigha. So for the 37 bighas the annual profit would come to Rs. 1,036. We have already accepted the finding of the learned Assistant Collector that nine years is to be taken as the period of the prospective flowor-producing capability of this land and multiplying the annual net value it comes to Rs. 9,324.

18. Wo cannot lose sight of the fact that out of the land which Ramjit had let he was making a profit of Rs. 500 annually and out of the land which he had in his own possession we think that he might have made a profit of another Rs. 200 so that, in any event, even if he kept the land in his possession in the way that he had been keeping the land, he could not for the nine years have made Rs. 9,324. We, therefore, think that we are entitled, in view of the provisions of Cl. (2), Section 76 of the Tenancy Act, to deduct from Rs. 9,324 a sum of Rs. 1,324. We think that we are entitled to make this deduction because of the fact that Ramjit is getting this sum of money which he would have made in 99 years and there might be years in which the income from the rose plants might be very little. We allow the appeal in part and vary the decree of the Court below and declare that Ramjit is entitled to the sum of Rs. 8,000 as the value of the land to him on 26th September 1923. From this sum must be deducted a sum of Rs. 661-1-2, the amount of the plaintiff's claim from Ramjit, for rent of the land. The plaintiff's claim is decreed for Rs. 7,339-14-10. The parties will pay and receive costs in proportion to success and failure in both the Courts.

R.K

19. Decree varied.