A, L. Vaidya, J.—The parties are stated to be real brothers. Plaintiff-appellant claims himself to be the exclusive owner in possession of the suit land, as described in the plaint, on the plea that he exclusively was in occupation of the suit land as tenant under the Panchayat and later on under the State of H. P. on payment of rent and entries in the revenue record showing the plaintiff and defendant as tenants in occupation of the suit land, were wrong- A suit was preferred by the plaintiff-appellant seeking declaration to the effect that he only was the exclusive owner of the suit land on account of his being in exclusive possession as tenant over the entire land to the exclusion of the defendant-respondent. As a consequential relief, prohibitory injunction was prayed for. On the other hand, defendants simple case had been that he alongwith the plaintiff were the joint tenants of the suit land on payment of rent and both of them had been granted proprietary rights under the provisions of H P, Tenancy and Land Reforms Act in the year 1986 and both are in joint possession of the land as owners.

2. Parties were put to trial by the trial Court on the following issues : I, Whether the plaintiff is sole owner in possession of the suit land and entry in revenue record in the name of defendant is wrong and incorrect, as alleged ? OPP

2. If issue No. 1 is proved in affirmative, whether plaintiff is entitled to the decree for permanent injunction ? OPF

3. Whether the suit is not maintainable ? OPD

4. Whether the plaintiff has no locus standi to file the suit ? OPD

5 Whether the plaintiff is estopped from filing the present suit ?OPD

6. Whether the suit is not properly valued ? OPD

7. Whether the suit is bad for non-joinder of necessary parties ?OPD

8. Relief, Issue No. 1 was decided in the negative while issue No. 2 was held to be redundant. Issues 3 to 7 were also decided in the negative. The suit was dismissed. The aforesaid judgment and decree of the trial Court were assailed in an appeal before the first appellate Court who, after hearing the parties, dismissed the appeal and maintained the judgment and decree passed by the trial Court. The aforesaid judgment and decree passed by the first appellate Court have been assailed in the present appeal on various pleas. I have heard the learned Counsel for the parties and have gone through the record.

3. Learned Counsel for the defendant-respondent at the very outset has raised an objection that on account of concurrent findings of fact given by the two courts below pertaining to the tenancy claimed by the parties, the present appeal even at this stage, does not survive. But on the other hand, learned Counsel for the appellant has submitted that the evidence examined during the trial has not been correctly and legally appreciated which requires the intervention of this Court.

4. Needless to say, the sole point required to be looked into in the present proceedings pertains to the exclusive right of tenancy claimed by the plaintiff-appellant in the suit land to the exclusion of his brother, the defendant-respondent. Admittedly, in the record of right, both the brothers have been shown in actual occupation of the suit land as non-occupancy tenants on payment of some annual rent. The entries to this effect which have been brought on record start from the year 1983-84 onwards and till the mutation for the grant of proprietory rights was sanctioned in favour of both the brothers, they were recorded jointly in occupation of the suit land as tenants on payment of rent. This mutation was sanctioned on 24-11-1986, as per Ex. D-5, the certified copy of the said mutation. Thereafter, copy of jamabandi for the year 1988-89 Ex. D-6 recorded both the parties in equal shares to be in joint possession of the suit land as owners.

5. It is an admitted proposition of law that tenancy is the creature of an agreement and in order to prove the factum of tenancy, the party claiming such a status, has not only t