JUDGMENT
Subhash Samvatsar, J.
1. This appeal is filed by the appellant-defendant challenging judgment and decree dated 15-10-1999 passed by 8th Additional District Judge, Gwalior in Civil Suit No. 35-A/91.
2. The brief facts of the case are that the respondent-plaintiff has filed the present suit for declaration and permanent injunction against the present appellant-defendant alleging that he is owner of House No. 29/998/1, Hanuman Chouraha, Lashkar, Gwalior. The plaintiff had purchased the said house from his ex-owner Jugal Kishore vide registered sale- deed dated 29-6-1988. The house was purchased for residential purpose. According to the plaintiff, he had filed an application for mutating his name in place of Jugal Kishore on 7-3-1989 and his name was mutated in the municipal record. Thereafter he sought a permission from the defendant Corporation for construction of a building, which was granted on 29-4-1991 vide document Ex. P-l. It is alleged by the plaintiff, he commenced the construction work after demolishing the said construction. After commencement the work, the permission was cancelled by the Commissioner of the Corporation vide letter dated 30-7-1991 (Ex. D-l). According to the plaintiff, the said order of cancellation is illegal and void. He, therefore, prayed that the said order be declared void and respondent be restrained from interfering in his construction work. It is alleged that the said notice was served after commencement of the work. He was not afforded any opportunity of hearing before cancelling his permission in his favour. It is also alleged that no reasons are assigned in the order of cancellation and thus said order is illegal and liable to be declared void.
3. The defendant filed its written statement denying the allegations made in the plaint. It is denied that the cancellation order was passed after commencement of the construction work. The defendant has also alleged that the construction work was cancelled, as the sanction was granted contrary to the master-plan.
4. The Trial Court on the basis of pleadings framed as many as five issues and after recording of the evidence decreed the suit. The Court below has found that the construction work was commenced before 29-7-1991. The Court has also found that the defendant has failed to prove that the said sanction granting in favour of plaintiff was contrary to the master-plan. The Court has also found that no opportunity of hearing was afforded to the plaintiff as well as no reasons are assigned for cancelling the sanction in favour of the plaintiff and decree the suit, hence this first appeal.
5. The first contention raised by learned Counsel for the appellant is that the Commissioner has power to direct modification or cancellation of a sanctioned plan of a building before its completion. For this purpose, Shri Rajendra Jain, learned Counsel for the appellant has relied on the provisions of Section 299 of the Madhya Pradesh Municipal Corporation Act, 1956 (hereinafter referred to as ‘the Act, 1956’).
6. As per Section 299 of the Act, 1956, the Commissioner may before any work has been commenced in pursuance of any permission granted by it under Section 293 of the Act, 1956 revoke such permission and may give fresh permission in lieu thereof on such conditions, in accordance with this Act. From bare reading of this Section, it is clear that Commissioner has power to modify or cancel permission before work has been commenced in pursuance of permission granted under Section 293 of the Act, 1956. learned Counsel for the appellant could not point out any other provision under the Act, which empowers Commissioner to modify or cancel the permission.
7. Thus, the main question involved in this appeal is whether the construction work of the plaintiff commenced in pursuance of the permission granted before 29-7-1991.
8. In the present case, the plaintiff had filed the suit on 7-8-1991, Le., within 10 days of cancellation of permission. The plaintiff in Para 6 of the plaint has stated that he has commenced construction work and 8 RRC pillars are already erected by him. He has also stated that he has constructed a wall on all the four sides. He has also dug a tube-well and spent nearly Rs. 50,000/- on construction before cancellation order was passed. This fact was disputed by the respondents. Considering the rival allegations made by the parties, a Commissioner was appointed for inspecting the spot and the Commissioner inspected the spot on 16-8-1991 at about 4:30 PM in presence of both parties and submitted his report accordingly.
9. As per his report on 16-8-1991 a basement admeasuring 30″.8′ x 36″ was in existing and nine cement pillars were also erected and the basement was surrounded from all the four sides by wall. The Trial Court after considering the Commissioner’s report and statement of witnesses has found that the construction work commenced before 29-7-1991,
10. learned Counsel for the appellant submitted that construction work was commenced by the plaintiff after service of notice. For this purpose, he invited attention of the Court to Para 9 of the statement of P.W. 1 Gopal Krishna, who stated that 10 -12 days were required for const met ion of the pillars. This statement is not sufficient to hold that construction work was commenced after 29-7-1991. The defendant had not asked any question in furtherance of the reply of the plaintiff in Para 9 that in 10-12 days work was done alter 29-7-1991. The preponderance of the probabilities is that the basement admeasuring 30″.8′ x 36″ cannot be constructed within a period of 15 days. Considering this fact and the oral evidence on record the Court found that the work commenced prior to 29-7-1991. The Court has also found that the defendant has not produced any evidence lo show that the sanction was granted contrary to the development plan or master-plan. The defendant has not produced any document to that effect. Thus, the Court below after relying on statement of witnesses and Commissioner’s report has found that construction work commenced before 29-7-1991, Le., before cancellation order was passed.
11. The Apex Court in the case of Madhusudon Das v. Narayani Bai and Ors. , has laid down that in an appeal against a Trial Court decree, when the Appellate Court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the Trial Court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that (he Appellate Court should permit the findings of fact rendered by the Trial Court to prevail unless clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the Trial Court or there is sufficient balance of improbability to displace its opinion as to where the credibility lies. In the present case we find that there is every probability considering the size of the construction that the work must have commenced before 29-7-1991. Hence, we do not find any reason to interfere in the findings arrived at by the Court below.
12 In the result, this appeal has no merit and is hereby dismissed. The judgment and decree of the Trial Court is confirmed.
13. In the facts and circumstances of the case, there shall be no order as to costs.