Judgment :- 1. Second plaintiff is the appellant. He and his father (first plaintiff) filed the suit when the defendant Panchayat attempted to demolish the building in C schedule property pursuant to Ext.A3 notice. Contention of the plaintiffs is that they are in possession of plaint C schedule property which lies contiguous to A and B schedule properties, that they have put up a building there and that the defendant Panchayat has no right to dispossess them. Defendant Panchayat filed written statement contending that the plaintiffs have no manner of right over plaint C schedule property and that it has vested with the Panchayat as provided under S.82 of the Kerala Panchayats Act. 2. The trial Court decreed the suit. In the appeal filed by the Panchayat the Sub Judge upheld the injunction granted by the trial Court restraining the Panchayat from trespassing into the plaint C schedule property. But the Sub Judge made it clear that the decree will not in any way affect the right of the Panchayat to take appropriate steps as provided under the law for evicting the plaintiffs from the property. 3. Contention of the plaintiffs is that the Sub Judge grossly erred in passing the impugned judgment overlooking the fact that the property had never vested with the Panchayat. It is contended that plaint C schedule property is not a tank coming within the ambit of S.82 of the Kerala Panchayats Act and therefore it can never be held that it has vested with the Panchayat. 4. The crucial point to he considered in the appeal is whether S.82 of the Act applies to a tank which was reclaimed and improved before the commencement of the Act viz. 1-1-1962. S.82(1) provides that all public water courses (other than rivers passing through more areas, than the Panchayat area which the Government may, by notification in the gazette, specify), springs, reservoirs, tanks, cisterns, fountains, wells, kappus, chats, standpipes and other water-works (including those used by the public to such an extent as to give a prescriptive right to their use) whether existing at the commencement of the Act or afterwards made, laid or erected and whether made, laid or erected at the cost of the Panchayat or otherwise, and also any adjacent land (not being private property) appertaining thereto shall stand transferred to and vest in the Panchayat. There is no evidence that C schedule property is a tank or it was a tack at the commencement of the Act. So long as the C schedule property is not a tank it is not possible to hold that it has vested with the Panchayat under S.82 of the Act. A tank that has been filled up and convened into a plot of land before the enforcement of the Act will not vest with the Panchayat. 5. To attract S.82 there must be evidence that C schedule property was a tank at the commencement of the Act. As C schedule property was not a tank at the commencement of the Act the Panchayat cannot claim any right under S.82. A reading of S.82 makes it clear that vesting with the Panchayat can be there only in respect of tanks, water courses, wells etc., whether it was in existence at the commencement of the Act or afterwards made, laid or erected at the cost of the Panchayat or otherwise. The commissioner's report Ext.Cl and the plan Ext. C2 would show that no tank was in existence in C schedule property in 1962. The report shows that C schedule property was reclaimed and a building was put up there. Commissioner also found several coconut saplings there. The age of the building is noted by the Commissioner as 15 years. Though Panchayat filed objection to the commissioner's report it did not choose to examine the commissioner to discredit any part of the report. The trial Court was justified in relying or the commission report as the commissioner was not examined to establish any infirmity in it. That being the position, the Sub Judge was not justified in ignoring the commissioner's report altogether. Aa the commissioner has noted the age of the building in C schedule property as 15 years, it would definitely show that the building was in existence even prior to 1962. That is indicative of the position that C schedule property was reclaimed prior to 1962 and that at the time of commencement of the Act it was not a tack. Hence it is indeed difficult to hold that C scheduled property had vested with the Panchayat as provided under S.82 of the Act. 6. That is indicative of the position that C schedule property was reclaimed prior to 1962 and that at the time of commencement of the Act it was not a tack. Hence it is indeed difficult to hold that C scheduled property had vested with the Panchayat as provided under S.82 of the Act. 6. As it cannot be said that C schedule properly had vested with the Panchayat, it has to be held that the Panchayat has no authority to dispossess the plaintiffs from the property. 7. Counsel for the Panchayat submitted that the appeal is cot maintainable as the first plaintiff did not choose to file any appeal. It is contended that second plaintiff (appellant) has not claimed any independent right in the property and therefore as the first plaintiff who claimed rights in the property did not file appeal it is not open to the second plaintiff to file the appeal. But it has to be noted that both the plaintiffs have claimed possession over the property and the trial Court granted decree in favour of them. First plaintiff is arrayed as one of the respondents in this appeal. As the Sub Judge has reversed the finding of the trial Court in favour of the appellant be is aggrieved by it and hence his competency to file the appeal cannot at all be questioned. 8. As the Panchayat cannot claim right is the property as it has not vested with it under S.82 of the Act, the judgment and decree of the Sub Judge cannot be sustained. The judgment and decree of the Sub Judge are hereby set aside and that of the trial Court restored. The Second Appeal is allowed. There is no order as to costs. Allowed.