JUDGMENT P.A. Mohammed, J. 1. These second appeals arise from a common judgment of the Subordinate Judge's Court, Ernakulam in A S. Nos. 43 and 46 of 1986. Bath these appeals were filed by one Balakrishna Menon. He died some time later and hence his daughter Indira V. Menon and son inlaw K. P. V. Menon were impleaded as legal heirs in view of the recital contained in the assignment deed executed by him in favour of them. Deceased Balakrishna Menon was the second defendant in O. S. No. 809 of 1981 filed by his sitter Padmavathy Amma. The rights of the first defendant Kochammini Amma where later assigned to Balakrishna Menon. Thus the main contest in these appeals is between Padmavathy Amma and legal heirs of Balakrishna Menon. 2. The common facts involved in these appeals are narrated hereunder: Balakrishna Menon along with three sisters, Janaki Amma, Ammalu Amma and Kochammini Amma jointly purchased an item of property as per the deed No. 432/1125. That property was later divided among the sharers as per the partition deed No. 420/1966. Balakrishna Menon and his sister Kochammini Amma obtained their share of 35 1/2 cents jointly. In the year 1968 Kochammini Amma executed a conditional sale deed in respect of six cents, a portion of the above joint property in favour A of Padmavathy Amma as per registered deed No. 1786/68 (Ext. A1 in O.S. 809/81) Kochammini Amma having failed to fulfil the conditions, the sale in favour of Padmavathy Amma became absolute. Thereupon Balakrishna Menon executed a registered deed releasing his rights in respect of the above six cents of land assigned to Padmavathy Amma. This six cents of land is the plaint A schedule property in O. S. No 809/81. A portion of this property having an area of about 40 feet in length and 2 1/2 feet in width is the plaint schedule property in the said suit. Later a portion of the joint property belonging to Kochammini Amma and Balakrishna Menon was again sold to one Sarada Amma leaving a balance of 13 cents in the possession of Balakrishna Menon. In October 1981 Kochammini Amma released all her rights over the 13 cents to Balakrishna Menon as per the release deed. Thus Balakrishna Menon became the absolute owner of this 13 cents of land. This is plaint A schedule property in O. S. No. 1039/81. In October 1981 Kochammini Amma released all her rights over the 13 cents to Balakrishna Menon as per the release deed. Thus Balakrishna Menon became the absolute owner of this 13 cents of land. This is plaint A schedule property in O. S. No. 1039/81. O.S. No. 809/81: In this suit filed by Padmavathy Amma, she prayed for a declaration of title and recovery of possession of plaint B schedule property. She had started construction of a residential building in plaint A schedule property. When construction reached upto the level of sunshade, Kochammini Amma and Balakrishna Menon, defendants in the suit, under the guise of putting up additional construction in the western side of their property encroached into plaint B schedule property. It was under that situation O. S. No 809/81 was filed before the Munsiff's Court, Ernakulam O. S. No 1039/81: Balakrishna Menon who was the second defendant in O. S. No 809/81 filed this suit before the Munsiff's Court, Ernakulam for a permanent prohibitory injunction restraining Padmavathy Amma from completing the construction of the building which she had put up la plaint B schedule property in O.S. 809/81. The plaintiffs case is that the water from the sunshade of the building constructed by Padmavathy Amma falls into his property. It was in that background O. S. No 1039/81 was filed by Balakrishna Menon with the aforesaid prayer. The above two suits were tried together by the learned Munsiff as per order In I. A, No 1241/83 in O.S. No 809/81. 3. In O. S. No. 1039/81 the plaintiff Balakrishna Menon as per the order in I. A. No. 4083/81 took out an Advocate - commissioner to prepare a sketch showing the lie of plaint A and B schedule properties. Ext. C3 is that report. The defendant Padmavathy Amma has filed objection against the said report on 6-1-1982. Subsequently, Padmavathy Amma, the plaintiff in O. S.809/81 filed I. A. 1223/83 for appointment of an Advocate - commissioner to measure out and identify the plaint schedule properties with the assistance of the Village Officer and to locate B schedule property after fixing the boundaries. This application was not opposed by Balakrishna Menon. Ext. C1 is the plan and Ext: C2 is the report (hereinafter referred to as 'the first report'). However, the correctness of Ext. C1 plan and C2 report was disputed by plaintiff and defendants. This application was not opposed by Balakrishna Menon. Ext. C1 is the plan and Ext: C2 is the report (hereinafter referred to as 'the first report'). However, the correctness of Ext. C1 plan and C2 report was disputed by plaintiff and defendants. The learned Munsiff found that plaintiff in O. S. No.809 of 1981 was entitled to prohibitory injunction only in respect of plaint A schedule property excluding plaint B schedule portion of property of 115sq. links shown in red shade in Ext. C 1 plan, But her prayer for declaration of title over plaint B schedule property was refused. In O. S No. 1039 of 1981 filed by Balakrishna Menon, the trial court found that he would be entitled to prohibitory injunction with respect to plaint A schedule property therein except in relation to the construction of the building in plaint B schedule property in O. S. No 1039/81. Being aggrieved by the above judgments and/decrees Padmavathi Amma filed A. S. Nos. 43/86 and 46/86 before the Subordinate Judge's Court, Ernakulam. During the pendency of the above appeals, Padmavathy Amma filed I.A. No. 405/85 in A. S. No 405/85 in A. S. No 46/86 praying to appoint an Advocate commissioner to prepare a fresh report and plan. The court accordingly appointed an advocate Commissioner who submitted Ext. C4 report dated 23-7-1986 (hereinafter referred to as the second report'). Ext. C4(a) is the plan attached to the said commission report. According to the second report, plots A, B, C, D, E, F, G, H is the property covered by Ext. A1 sale deed. The Subordinate Judge placing reliance on Ext. C4 report and C4 (a) plan found that the plaint A schedule property in O. S. No. 809/ 81 is plots A, B, C, D, E, F, G, H as shown in Ext. C4 (a) plan. The plot EFZ is the plaint B schedule property which is a portion of plaint A schedule property covered by Ext. Al sale deed. Accordingly, the lower appellate court found that the appellant Padmavathy Amma is entitled to recover possession of plot EFZ on the basis of the title. It is further found that she is also entitled to got an injunction against respondents from trespassing into any portion of the plots A, B, C, D. E, F, G, H, except EFZ. Accordingly, the lower appellate court found that the appellant Padmavathy Amma is entitled to recover possession of plot EFZ on the basis of the title. It is further found that she is also entitled to got an injunction against respondents from trespassing into any portion of the plots A, B, C, D. E, F, G, H, except EFZ. The lower appellate court, however, modified the decree in O. S. No 1039/81 to the effect that defendant (Padmavathy Amma) is restrained by a perpetual injunction from trespassing into any portion of the green shaded plot marked in Ext. C4 (a) plan. As against the above common judgment of the lower appellate court in A. S. Nos. 43 and 46 of 1986, the present appeals were filed. 4. The question of law very forcefully argued by Mr. C. Chandrasekharan in both the appeals is one and the same. The question is whether the lower appellate court is justified in law in placing reliance on the second commission report without setting aside the report submitted by the trial court. As far as this court is concerned, the law is settled by the reason of the decision of the Division Bench in Swami Premananda Bharathi v. Swami Yogananda Bharath. ( 1985 KLT 144 ) where it has been held that the first commission report and proceedings should be set aside and then only the court can proceed to appoint another commissioner. This is the 'wholesome rule of law based on public policy. His Lordship Justice K. S. Paripoornan while speaking on behalf of Bench observed: "Time and again, the courts have condemned or deprecated the tendency of the subordinate courts in the appointment of a second commissioner before superseding the first commissioner's report and proceedings. That the first commissioner's report and proceedings should be set aside for reasons to be recorded and then only the court can proceed to appoint another Commissioner to do the work is a wholesome rule of law based on public policy." 5. That the first commissioner's report and proceedings should be set aside for reasons to be recorded and then only the court can proceed to appoint another Commissioner to do the work is a wholesome rule of law based on public policy." 5. Another Division Bench of this court in State v. Kodakkat Pocker ( 1987 (1) KLT 714 ) observed: "It is very well within the competence of the appellate Court also to exercise in appropriate cases power under O.26 R.10(3) to set aside the commission report and call for fresh report by deputing another commissioner." In this decision the setting aside of the first report by the appellate court is also contemplated before calling for second report by fresh commissioner. 6. The next question is whether this court can straight away apply - the principles in Swami Premananda Bharathi's case ( 1985 KLT 144 ) to the facts of this case and to render the impugned judgment and decree invalid, It is worthwhile in this connection to note the facts in Swami Premananda Bharathi's case. In that case which arose under O.26 R.11 and 12 there was a first report by an Advocate commissioner. As against the said report objections were filed. But without considering the objections another commissioner was appointed and that too without setting aside the first report. The order of appointment of the second commissioner dated 21-12-1974 was challenged before this court in revision. However, this court did act interfere with the order of the trial court. Thereafter the trial court proceeded with the trial and the trial court after setting aside the first commission report based its judgment on the report of the second commissioner. The said judgment was challenged in the appeal before this court. Ultimately this court found that the court below acted illegally and without Jurisdiction in appointing the second commissioner and in placing reliance on the report of the second commissioner. This court further ordered that the reports of the second commissioner should be eschewed from consideration. 7. The facts of the present cases is strikingly dissimilar to the above facts in Swami Premananda Bharathi's case. The learned Munsiff in the common judgment in O.S. Nos. 809 and 1039 of 1981 has pointed out certain mistakes committed by the commissioner in the first report. 7. The facts of the present cases is strikingly dissimilar to the above facts in Swami Premananda Bharathi's case. The learned Munsiff in the common judgment in O.S. Nos. 809 and 1039 of 1981 has pointed out certain mistakes committed by the commissioner in the first report. It was in that background the petition for appointment of a fresh commissioner was filed before the lower appellate court. That petition was moved by the appellant therein as agreed upon by both parties in view of the apparent mistakes in the first report. In the affidavit filed in support of the said petition, it is averred thus: "4. The dispute centers round a narrow strip of land upon which rival claims have been put forward by the parties. In the trial court the disputed property was measured out with the assistance of the Village Officer and a plan has been produced also. As the correctness of the plan was disputed it was agreed to measure out the plaint schedule property with the assistance of the Taluk Surveyor. For measuring out the plaint schedule property with the assistance of the Taluk Surveyor an Advocate Commissioner may be appointed. As already agreed between the parties I am prepared to deposit half of the commission batta and the other half the respondents may be directed to deposit in court." No objection was filed by the contesting respondent nor was there any dispute as to the correctness of the statements contained in the affidavit. The remuneration of the commissioner was paid equally by both parties. In the common judgment in A. S. Nos. 43 and 46 of 1986, the learned Sub Judge on the question of appointment of a fresh commissioner observed as below: "According to the respondents D.W. 2, the Commissioner and P.W. 1 the Village Officer has not correctly demarcated the plots and therefore the boundaries cannot be fixed with reference to Ext. C1 plan. During the pendency of this appeal the learned Additional District Judge before whom the appeal was originally pending had appointed a commission at the instance of the appellant to demarcate the plots afresh with the aid of the Taluk Surveyor. C1 plan. During the pendency of this appeal the learned Additional District Judge before whom the appeal was originally pending had appointed a commission at the instance of the appellant to demarcate the plots afresh with the aid of the Taluk Surveyor. It appears from the proceeding papers that the second respondent was also a contesting party to the said application and in fact half of the remuneration of the commissioner has been paid by the appellant and the balance by the respondents. That commissioner has submitted Ext. C4 report and C4(a) plan." 8. Not withstanding the above, can the appellant now be allowed to argue that the second report (Ext. C4) shall not be acted upon since the first report (Ext. C1) was cot set aside? No; he cannot be allowed as he is estopped from advancing such arguments. It is true that without setting aside the first report, the lower appellate court had called for second report by appointing fresh commissioner. In Sivaraman v. Narayanan ( 1986 KLT 578 ), Varghese Kalliath, J. observed; "If the report of the first Commissioner is found to be deficient on any point, the proper course would be to direct the same Commissioner to remedy the defects. If the court is dissatisfied with the proceedings of the Commissioner, the court gets jurisdiction to direct such further enquiry, to be made as the court shall think fit." It is thus certain that when the court is dissatisfied with the first report, it gets jurisdiction to direct further enquiry as the court shall think fit. If the court is dissatisfied with the proceedings of the Commissioner, the court gets jurisdiction to direct such further enquiry, to be made as the court shall think fit." It is thus certain that when the court is dissatisfied with the first report, it gets jurisdiction to direct further enquiry as the court shall think fit. In Kunhi Kutty Ali v. Mohammed Haji (AIR 1931 Madras 73) the Division Bench of the Madras High Court held: "The exact circumstances in which he came to issue the second commission do not appear from the record that has been placed before us, but the second commission should not have been issued, unless it was thought that the report of the first commissioner was not satisfactory in which case the earlier commission should have been wiped out altogether and attention should have been paid only to what was reported by the second commissioner." In Samudrala Seetaramacharyulu v. Samudrala Ranganayakamma ( AIR 1958 AP 304 ) it is held as follows: "There is no doubt that two separate commissions should not be issued to deal with one and the same subject and to treat the reports of both the commissioners as evidence in the case. It is only if the report of the first commissioner is unsatisfactory and the court is dissatisfied with his proceedings that a second commissioner may be appointed under the provisions of O.26 R.10(3) C. P. C". It is further held in the above decision thus: "The parties acquiesced in the appointment of the second Commissioner and accompanied him during the course of his inspection. The connection that the second commissioner's report is null and void is, in my opinion, untenable. The defendants, who have agreed to his appointment and to abide by his estimate, are not entitled to turn round and contend that the second commissioner's report is not evidence under the terms of O.26 R.10(2) C.P.C". 9. There are oases like the present one where the contesting parties agree that the first report did not contain relevant data and therefore a fresh commissioner should be appointed. In certain other cases, same commissioner may be asked to submit a fresh report as agreed upon between the parties in view of the apparent mistakes in the first report. 9. There are oases like the present one where the contesting parties agree that the first report did not contain relevant data and therefore a fresh commissioner should be appointed. In certain other cases, same commissioner may be asked to submit a fresh report as agreed upon between the parties in view of the apparent mistakes in the first report. In such cases it cannot be insisted that the first report shall be set aside first and than only the second commissioner shall be appointed Inasmuch as the evidentiary value of the first report has been eschewed as a result of the agreement between parties. The necessity for the appointment of the second commissioner arises in view of the facts of each case. In Swami Premananda Bharathi's case ( 1985 KLT 144 ) there were objections against the report of the first commissioner and without deciding that objections one way or the other, the appointment of the second commissioner was made. Such a situation is absent in the present case. Therefore, I am persuaded to take the view that when both parties to a litigation agree to take out a second commission for obvious reasons the evidentiary value of the first report is automatically detached. In that situation the court need not pass separate orders setting aside the first commission report because it is implied when the order for appointment of second commission is passed. What is necessary under sub-r.(3) of R.10 is that the courts shall be dissatisfied "for any reason" and not "for reasons to be recorded". 10. One of the contesting parties who had agreed to the appointment of the second commissioner cannot contend at a later stage of the proceedings that the second report is without jurisdiction since the first report is not set aside. This is exactly the occasion where the court should act "extra cursum curiae" and enforce the agreement between the parties. The above principle is found accepted by the Division Bench of the Madras High Court in Sankaranarayana Pillai v. Ramaswami Pillai, (AIR 1923 Madras 444) where it has been held thus: "Where parties agree to a court proceeding without jurisdiction extra cursum curiae as it has been put, the parties cannot appeal from the decision of the court. The above principle is found accepted by the Division Bench of the Madras High Court in Sankaranarayana Pillai v. Ramaswami Pillai, (AIR 1923 Madras 444) where it has been held thus: "Where parties agree to a court proceeding without jurisdiction extra cursum curiae as it has been put, the parties cannot appeal from the decision of the court. The patties in fact may agree not to appeal from the decision of the court and such agreement will be inferred from the fact that they agreed to the Court taking a course which is altogether outside the ordinary powers of the Court," In S. M. Mosa Sahib v. Darisa Subbamma (AIR 1937 Madras 563), Horwill, J. observed: "Notwithstanding the other previsions of the Procedure Code, it is always the policy of the Court to enforce if possible any agreement entered into between the parties: and in special circumstances where a grave in justice would be done if the court did not exercise its inherent powers, I have no doubt that the court is entitled under S.151 Civil P. C. to do justice by giving effect to the agreement of the parties." 11. The appellant had admitted that the first commission report and plan did not contain correct particulars. As pointed out earlier, he had therefore agreed to the appointment of second commissioner after eschewing the first report from consideration. Just contrary to this appellant now argues that reliance ought to have been placed on the first report and plan in deciding the dispute. A party to a litigation cannot be allowed to take contradictory or Inconsistent pleas one at trial stage and another at appellate stage. His contention in a proceedings from beginning to the end shall be consistent and uniform. It is an elementary rule that a party litigant cannot be permitted to assume inconsistent positions in court, to play fast and loose, to blow hot and cold to approbate and reprobate to the detriment of his opponent. This wholesome doctrine applies to the successive stages of the same suit. The above position of law is laid down in Dwijendra Narain Roy v. Joges Chandra De (AIR 1924 Calcutta 600). The above principle has been applied by the Division Bench of the same High Court (Mukkerji and Bose, JJ.) in Hemanta Kumari Devi v. Prasanna Kumar Datta (AIR 1930 Calcutta 32) in the following factual situation. The above position of law is laid down in Dwijendra Narain Roy v. Joges Chandra De (AIR 1924 Calcutta 600). The above principle has been applied by the Division Bench of the same High Court (Mukkerji and Bose, JJ.) in Hemanta Kumari Devi v. Prasanna Kumar Datta (AIR 1930 Calcutta 32) in the following factual situation. "Where the tenants of a holding take up a position in proceedings under S.105 Ben. Ten. Act, that the application does not lie and the application is withdrawn, they will not be allowed to say in subsequent proceedings in suit that the application operated as a bar to it". 12. No other questions of law are involved in the present appeals Both the appeals are dismissed. The judgment and decree passed by the lower appellate court in A. S. Nos. 43/86 and 46/86 are confirmed. The parties are directed to suffer their respective costs.