JUDGMENT

RFA No. 949/2016 and C.M. Appl. No. 45145/2016 (for stay)

1. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant no. 3 in the suit impugning the Judgment of the Trial Court dated 30.07.2016 by which the trial court has decreed the suit for declaration and injunction filed by plaintiff nos. 1 and 2 and has restrained defendant no.3, being the exclusive owner of one portion of the property bearing no. 11-B, Rajendra Park, New Delhi, (hereinafter 'suit property') from, in any manner, being entitled to claim ownership or use of the other separate common portion found not to be in the exclusive ownership or entitlement of the appellant/defendant no. 3 shown in yellow colour in the site plan Ex.PW1/1. Further, the appellant was also restrained from using the front gate of the property.

2. The facts of the case are in a narrow compass. The original owner of the suit property was Smt. Kaushalya Rani, who was the mother of the respondent nos. 1 and 2/plaintiff nos. 1 and 2 and respondent no. 3/defendant no. 1. On the death of the mother, Smt. Kaushalya Rani, the ownership of the suit property, in terms of her registered Will dated 07.02.1983 vested with respondent nos. 1 and 2/plaintiff nos. 1 and 2 and defendant no. 1/respondent no. 3, whereby, the exclusive ownership was given to each son of certain portions of the property and common ownership rights in certain other areas of the driveway, gate and staircase were given to all the three brothers. A site plan was attached to the Will of Smt. Kaushalya Rani and as per this site plan, the red/pink-coloured portion exclusively vested with respondent no. 1/plaintiff no. 1/Sh. Vern Kumar Datt, the portion marked in green exclusively vested with the respondent no. 2/plaintiff no. 2/Sh. Ashwani Kumar Datt, and the portion shown in blue exclusively vested with respondent no. 3/defendant no. 1/Sh. Aditya Datt. Therefore, all three brothers were given exclusive ownership rights with respect to separate portions, on each floor of the property which were marked in pink, green and blue respectively in the site plan attached to the Will. In this very site plan, certain portions of the suit property were shown as being the common portion and this common portion was depicted in yellow colour in the site plan. It essentially comprises of the drive way on the ground floor, the front entrance gate therein and the staircase leading to the upper floors of the property. It may be noted that all three brothers, as already stated above, were given exclusive ownership of a certain portion on each floor of the property being the ground floor, first floor and second floor.

3. The three sons of Smt. Kaushalya Rani, being the plaintiff nos. 1 and 2 and the defendant no. 1 in the suit, thereafter, admittedly entered into a Memorandum of Understanding (hereinafter 'MOU') on 31.10.2001 whereby the three brothers agreed to a particular form of ownership and enjoyment of the common portion marked in yellow in the site plan attached to the Will. The relevant paragraphs of the MOU dated 31.10.2001, are paragraphs 1, 2 and 11, and this Court is concerned with the interpretation of the said paragraphs. The issue is that whether under the terms of the MOU, especially paras 1, 2 and 11 thereof, the rights of respondent no. 3/defendant no. 1/Sh. Aditya Datt (the exclusive owner of the blue portion in the site plan attached to the Will, adjacent to the rear lane at the back of the property), in the common portion got extinguished in any manner as such rights once being divested from respondent no. 3/defendant no. 1, cannot be thus available to the transferee. The narration of facts of the Memorandum of Understanding with Clauses 1, 2 and 11 read as under:

"MEMORANDUM OF UNERSTANDING

This Memorandum of Understanding on this 31 day of October, 2001 between Vern Kumar Datt, Ashwani Kumar Datt and Aditya Kumar Datt, all the three sons of Sh. R.P. Datt, R/o