JUDGMENT

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 % non-occupancy tenant of a certain holding of which the owner was the plaintiff-appellant, Raja Surajpal Singh, the Raja of Avagarh.

2. It is admitted that the plaintiff, as zamindar, took steps under Sections 58 and 63, 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 pukka 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.

3. Having got a decree for ejectment there were two courses open to the landlord. u/s 75(1), Tenancy Act, it is provided that if at the date on which ejectment takes effect there are ungathered 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-section 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 crops or other products have been gathered and removed paying a fair rent therefor.

4. In the present case the landlord exercised his option u/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. From 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 kinder Section 75, 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.

5. 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 difficulty in making up his mind as to the amount he was prepared to assess by