Manju Goel, J.

1. This judgment is to decide two pre1iminary issues being issues Nos.1 & 2 which are as under:

"(1) Whether the suit is barred under the provisions of Order 2 Rule 2 CPC? (OPP)•,

(2) Whether the suit is barred under Order 23.Ruie 1(4)(b) CPC/ (OPP)"

2. Briefly stated the story of the plaintiff in the present suit is as under:

Narain Das was the owner of property No. E-129-130, Amar Colony, Lajpat Nagar-IV, New Delhi. He died leaving behind five sons, namely, Shri Jugal Kishore, Shri Arjun Dev Bajaj, Shri Bal Kishan Bajaj, Shri Bhim Sen Bajaj and Shri Dina Nath Bajaj. By virtue of a family settlement between the Shri Jugal Kishore; Shri Atjun Dev Bajaj and Shri Bal Kishan Bajaj, Shri Bal Kishan Bajaj became the exclusive owner of the entire ground floor of property No. E-130, Amar Colony as well as for the entire second floor, third floor and terrace of the property bearing No. E-129, Amar Colony. The plaintiff is the son and defendant Nos.1 & 2 are the widow and daughter of Bal Kishan Bajaj, who died intestate Oi1 1.10.1999. The properties left behind by him were this half share in the property E- 129-130, Amar Colony as mentioned above, hereinafter referred to as the "suit property", and plot of land in Sushant Lok admeasuring 500 sq. yards apart from certain movable properties including fixed deposits. The plaintiff shared equally with the father in the ancestral property and thereafter on the death of Shri Bal Kishan Bajaj inherited the share of Shri Bal Kishan Bajaj. The plaintiff thus claims 4/6 share in the house and 1/3rd share in the plot of land.

In order to bring piece and to resolve the differences that arose between the plaintiff and his mother, plaintiff along with defendant No. 2 executed a relinquishment deed dated 18.4.2002 in favour of defendant No.1 in respect of the suit property. Defendant No.1 coerced the plaintiff to sign a memorandum of understanding and it was agreed that the plaintiff would be compensated by payment of Rs. 56 lakhs and thereafter the plaintiff executed a relinquishment deed dated 18.4.2002. it was agreed between the parties that defendant No.1 would fulfill his under taking and the terms of settlement and would pay to the plaintiff a sum of Rs. 56 lakhs towards the plaintiffs share in the suit property and the property at Sushant Lok. The document was executed on the undertaking of such payment. Defendant No.1, however, did not make the payment agreed to by her. The plaintiff, however, was pressurized to vacate the property and the plaintiff apprehending threats shifted to the house of his father-in-law but remained in constructive possession of the house where his belongings were lying. In June, 2002, defendant No.1 sent a cheque of Rs. 19.50 lakhs. Out of this amount, only Rs. 9.50 lakhs, could be adjusted against the payment under the settlement as Rs. 10 lakhs was adjusted towards other outstanding dues. Since defendant No. 1 has committed breach of her undertaking to pay the agreed amount, the plaintiff is no more interested in recovering the settlement amount. The relinquishment deed was executed under undue influence of defendant No. 1. Since defendant No. 1 has not fulfilled her part of the undertaking the plaintiff now seeks to get his share of immovable property by a partition. The plaintiff prays for a decree for partition in respect of the immovable properties and a decree for declaration canceling the relinquishment deed dated 18.4.2002.

3. I will first deal with issue No. 1.

4. The plaintiff earlier instituted a suit for injunction. In the plaint it is contended that in order to protect his rights in respect of the suit property, the plaintiff filed a suit bearing No. C-39/2002 seeking protection against dispossession from the suit property. He contends further that since the suit was filed under great urgency and the same did not cover all the disputes between the parties and in particular the claim for partition, the plaintiff withdrew the suit and th