V.K. Jadhav, J.

Being aggrieved by the judgment and order passed by the learned District Judge, Dhule dated 1.4.1986; in Civil Appeal No. 235 of 1982, the original plaintiff has preferred this second appeal.

2. Brief facts giving rise to the present second appeal are as follows:

(a) The appellant-plaintiff had instituted Regular Civil Suit No. 140 of 1970 for recovery of encroached portion and recovery of mesne profit. The appellant-plaintiff claims to be the owner of land survey No. 103 admeasuring 23 acres and 1 gunthas situated at village Karvand, Tq. Shirpur, District Dhule and the respondent-defendant is the owner of land survey No. 104 situated to the east of the suit survey number. According to the appellant-plaintiff, in the year 1957, the piece of land, which was in possession of the tenant was restored to her. In the year 1966, the portion of the suit land came to be acquired by the Government for the purpose of construction of water channel and as such, the area of suit land was reduced to the extent of 18 Acres 39 Gunthas and 14 Gunthas as Potkharaba. Thus, the total land admeasuring 19 acres 13 gunthas remained with the appellant-plaintiff. At the time of construction of water channel, the appellant-plaintiff suspected that there had been encroachment over her land at the instance of the adjoining owner. Consequently, the appellant-plaintiff got measured the suit land. It was revealed in the measurement that a portion of the suit land admeasuring 31 gunthas had been encroached upon by the respondent-defendant by shifting common bandh between the suit land and the defendant s land survey No. 104. The appellant-plaintiff had thus issued notice to the respondent-defendant on 1.3.1968 for restoration of possession but the respondent-defendant refused to accept the notice and thus refused to return the encroached portion of suit land. The appellant-plaintiff thus constrained to institute the suit for the relief’s, as detailed above.

(b) The respondent-defendant had strongly resisted the claim by filing written statement Exh.15. The respondent-defendant has specifically denied the encroachment as well as shifting of common bandh. The respondent-defendant has raised a plea that the suit was not maintainable since previous suit on the very cause of action, being Civil Suit No. 47 of 1969, was withdrawn and fresh suit was not allowed. Secondly, the respondent-defendant also contended that he had been in possession of the suit property for more than 12 years as a owner and such possession has been exercised openly and hostile to the appellant-plaintiff. It has been also contended that there was no measurement properly made in presence of the respondent-defendant.

(c) On the basis of rival pleadings of the parties to the suit, the learned Judge of the trial court has framed as many as 11 issues covering the respective pleadings of the parties and also the legal points arising out of the objection regarding the bar of limitation and the bar of res-judicata to institute the suit. Both the parties led their oral as well as documentary evidence in support of their rival contentions. The learned Judge of the trial court has decreed the suit and turned down the plea of adverse possession raised on behalf of the respondent-defendant and also ruled that the suit was well within the period of limitation. The plea of res-judicata too was negatived. The possession of the encroached portion of the suit land was directed to be delivered in accordance with the encroachment shown in the map Exh.65. However, the matter went in appeal and while examining the entire set of findings, both on facts and law, the learned District Judge in Civil appeal had come to the conclusion that the measurement made and recorded vide Exh.65 was not done properly as it was not made in presence of the respondent-defendant and secondly that the standing instructions as per the Garden s Manual were not followed. The matter was remanded to the trial court wit