1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIAL APPELLATE JURISDICTION SECOND APPEAL NO. 468 OF 2008 WITH CIVIL APPLICATION NO. 1153 OF 2008 Sudhir Narayan Kulkarni ........Appellant versus Arvind Ramkrishna Nhamdari & ors........ Respondents. Mr. A.V. Anturkar with Tanaji Mhatugade i/b. S.S. Deshmukh for the Appellant. Mr. V.S. Talkute for Respondents. CORAM: R. V. MORE, J. DATED : 08th OCTOBER, 2008. P.C.: 1. Heard Mr. Anturkar learned counsel for the appellant and Mr. Talkute for respondents. The appellant is the original defendant. Respondent no.1's suit for partition was decreed by both the courts below. The appellant and the respondent no.1 admittedly purchased property from one Mahadeo on 10th March 1972. There is no dispute that the appellant and the respondent no.1 have ½ share each in the suit property. The respondent no.1 by issuing notice dated 30th August 1989 asked for partition from the appellant. The respondent no.1 again gave notice on 10th December 2002 to the appellant claming partition. Second notice was replied by the appellant on 17th February 2002 2 denying the partition to the respondent no.1 and therefore the respondent no.1 constrained to file suit as stated above for partition. 2. Mr. Anturkar learned counsel for the appellant submitted that the respondent no.1's suit is not within limitation. His submissions are in two fold. Firstly that the first notice of the respondent no.1 was replied by the appellant on 11-9-1989 denying him partition. Therefore the cause of action to file suit for partition acrued on 11-9-1989. Secondly he submitted that in the first notice dated 30-8-89 respondent no.1 demanded partition from the appellant within the period of 15 days and since same was not given by appellant it is to be presumed that limitation starts running, after expiry of 15 days from the date of receipt of notice by the appellant. 3. In my considered view, both the submissions have no merit. The lower appellate court in para 21 of the inpugned judgment and order categorically recorded the finding that the alleged reply to the notice dated 11-9-1989 by the appellant to the respondent no.1 is not proved by any independent evidence. In view of this finding the first submission of Mr. Anturkar does not have any merit. The second submission that the limitation started, immediately after expiry of 15 days from respondent no.1's notice dated 30-8-89 is concerned, hence is also without any merit. There is nothing on record to suggest that earlier to 17-2-2003 the appellant denied partition to respondent no.1. For 3 the first time by the above written reply the appellant denied partition to the respondent no.1. In my view cause of action cannot said to have acrued to the respondent no.1 after expiry of period of 15 days from date of first notice, in as much as the appellant prior to 17-2-2003, never denied partition to respondent no.1 specifically. Both the courts blow concurrently held that the respondent no.1/plaintiff has ½ share in the suit property and the suit for partition is within limitation. I do not find any reason to interfere in the above judgment and order of the lower courts below. The appeal is therefore dismissed. 4. In view of the dismissal of the appeal civil application does not survive and the same is also dismissed. (R.V. More, J.)