1. WAHEEDUDDIN AHMAD, J.-This appeal by special leave is directed against the order of the former High Court of West Pakistan, Lahore, in Writ Petition No. 1439-R of 1964 dated the 22nd October 1964.
2. By this order the writ petition was dismissed.
3. The dispute relates in respect of a shop situated in New Anar--kali, Lahore. It is a part of a building which consists of several shops and residential flats. Out of the shops, two shops are in possession of Muhammad Sadiq Shah respondent No. 3 and the adjoining one shop is in possession of Abdul Ghani respondent No. 2. The residential flat on the top of these shops has been in possession of appellant since 1948. It is alleged that the entrance to the stairs leading to the residential flat in the upper-storey has a small projection (Thara) covering a Municipal drainage. This Thara abuts the New Anarkali Bazar. Respondent No. 1 Zahoor-ud---Din occupied the Thara in the year 1954 and started his business there. In 1960, he fixed an Almirah of the structure of a show--case on the wall of the stair-case leading to the residential portion transferred to the appellant to which the Thara is attached. It is further alleged that before respondent No. 1 came into possession of this Thara, one Maqsoodul Hussan occupied it after Partition in 1947, and set up a small business of general merchandise on it and later set up a wooden Khokha on this Thara for the purpose of his business.
4. In 1953, the Corporation authorities found it to be an unauthorised construction and with the aid of the Martial Law authorities demolished the same along with all other such unauthorised Khokhas.
5. The Thara remained vacant in the years 1953 and 1954. In 1954, after quite sometime of the lifting of the Martial Law from Lahore, the respondent Zahoor-ud-Din occupied the Thara and settled his business by placing a show-case on it.
6. Respondent No. 1 Zahoor-ud-Din who is a non-claimant displaced person submitted NCS form for the transfer of Thara and Almirah as a shop. The appellant, who is a claimant displac--ed person submitted CH form for the transfer of the entire building viz. Residential flats and the shop portion of propert3, No. 8-64-R-21, New Anarkali, Lahore. There was litigation bet--ween the parties and the Additional Settlement Commissioner, by his order dated the 28th November 1963, transferred the residential flat to the appellant and transferred the three shops jointly to respondents Nos. 2 and 3 and held the Thara together with Almirah fixed on the outer wall of stair-case as a shop and transferred the same to respondent No. 1.
7. The appellant being dissatisfied with the order dated the 28th November, 1963, filed a revision petition before the Settlement Commissioner, Lahore. The appellant contested the respondent's right for the transfer of the Almirah and the Thara. The learned Settlement Commissioner dismissed the revision petition and upheld the order of transfer in favour of Zahoor-ud-Din respon--dent No. 1.
8. The appellant filed Writ Petition No. 1439-R of 1964, before the former High Court of West Pakistan, Lahore, but the petition was dismissed in limine by a Division Bench of the High Court by order dated the 22nd October 1964. The appellant filed a petition for special leave to appeal against the aforesaid order and this Court granted leave to appeal on the 3rd May 1965.
9. Leave was granted in this case to examine the question, namely, as to whether an Almirah fixed to a wall can be treated m law as a separate business premises or a separate shop.
10. Mr. Saeed Akhtar, learned counsel for the appellant, has contended that the wall of the property in dispute has been transferred to the appellant and anything attached to it belonged to him.
11. According to the learned counsel, respondent No. 1 has fixed an Almirah to the wall and that cannot be treated as a separate business premises or a separate shop. The contention of the appellant was considered by the High Court and they observed in this connection as under: "We do not see any substance in these contentions, as on the basis of the spot inspection, the Additional Settlement Commis--sioner has observed in this order dated the 28th of November 1963 that "from what I could judge therefrom I am of the view that the premises occupied by Zahoor- ud-Din were for all purposes a shop and to give it the name of almirah would not be its correct description. Anarkali Bazar, where this property is situate, being a very highly commercialised area, even small premises of commercial value would have to be considered independent and with this view in mind I do hold these premises to be a shop. In view of this finding of fact, we cannot agree with the learned counsel that the premises transferred to Zahoor-ud-Din were indeed a part of the residential portion of the petitioner which is situated on the first-floor and not on the ground-floor.
12. The contention that a shop cannot be carved out of a residential portion, has also no force. In accordance with the instructions appearing at page 140 of the Settlement Manual, the general principle laid down by the Chief Settlement Commissioner is that the property will be disposed of according to the use to which it was being put on the 20th December 1958, unless the Additional Settlement Commissioner is satisfied that the property should be disposed of in the public interest according to its status at the time it became evacuee property. In the present case, Zahoor-ud-Din has been using the disputed portion as a shop much before the 20th of December 1958, and, therefore, this portion has been rightly transferred to him. The petitioner has no entitlement whatsoever to the transfer of this portion."
13. It will thus be noticed that the High Court has relied on the finding of fact given by the Additional Settlement Commissioner that the above-mentioned portion of the property in dispute is a shop and not an Almirab.
14. Ch. Khalil-ur-Rahman, learned counsel for the respondent No. 1 has referred to the P. A. List for the year 1946 which shows that the portion in possession of the respondent was a shop in possession of Nand Lal and had - been separately assessed at Rs. 7/8 per month. He also showed us the photograph at p. 116 which shows that the property in dispute is a shop and not a Khokha. The photograph shows that the shop is built between Germany Shifakhana and stair-case leading to the upper-storey of the building transferred to the appellant.
15. After hearing the learned counsel for the parties, we are satisfied that the finding of fact given in this case by the Addi--tional Settlement Commissioner is based on good evidence and there is no ground to interfere with that finding. We would, therefore, hold that the portion in dispute is a shop and is not a Khokha and it has been rightly transferred to respondent No. 1. We, therefore, find no force in the appeal which is dismissed with no order as to costs.