JUDGMENT : L. Rath, J. - In a revision before the Commissioner of Consolidation (Consolidation Revision No. 187/81) where Padmalabha, the original petitioner was figuring as opp. party No. 6, a memo was filed on his behalf by his advocate on the death of the opp. party No. 6 therein, one Susila Swain that no substitution in her place was necessary as Padmalabha was her only legal heir. While the matter was pending consideration the present Opp. party Nos. 1 to 4 filed a petition under Order 22, Rule 10, Cods of Civil Procedure before the Commissioner to implead them as parties in place of Sushila alleging that they had purchased the disputed property by two registered sale deeds executed on 14-7-1982 by Susila. Objections to such petition were filed by both Padmalabha as also the opp. party No. 11 here who was the revision petitioner before the Commissioner. In the objections the stand was taken that since the purchases by the opp. party Nos. 1 to 4 were after the publication of notification u/s 13(1) of the Consolidation of Holdings and Prevention of Fragmentation of Land Act (hereinafter referred to aa 'the Act'), such transactions were void and hence they were not entitled to be impleaded as parties to the revision. The Commissioner overruled the objections holding the view that the provisions of Section 4(2) as also Sections 34 and 35 of the Act did not prohibit the transfer by way of sale or otherwise of the entire interest of a person though transfer of fragments thereof is prohibited and that hence the sales by Susila to opp. party Nos. 1 to 4 were not hit by the provisions of Section 4(2) as Susila had transferred her entire interest. For the purpose, the learned Commissioner relied upon a Full Bench decision in Smt. Asharfunisa Begum Vs. Dy. Director of Consolidation Camp at Hardoi and Others. Aggrieved by such decision Padmalabha came before this Court during pendency of which case he having died, the present petitioners have been substituted in his place. 2. For the purpose, the learned Commissioner relied upon a Full Bench decision in Smt. Asharfunisa Begum Vs. Dy. Director of Consolidation Camp at Hardoi and Others. Aggrieved by such decision Padmalabha came before this Court during pendency of which case he having died, the present petitioners have been substituted in his place. 2. Section 4(2) of the Act mandatorily prohibits the transfer of any agricultural land by way of sale, gift, mortgage or exchange after publication of the notification u/s 13(1) of the Act unless it has been done with the written previous permission of the Consolidation Officer and further directs that no document purporting to effect such transfer shall be registered by the registering authority unless it is accompanied by the certified copy of the written permission. There can be hardly any dispute that the provision is in a mandatory cast and compels rigorous performance. Any transaction effected in contra-vention of that provision would be automatically void as is enjoined u/s 23 of the Contract Act. 3. The authority of the Allahabad High Court relied upon by the Commissioner has no application to the facts of the case. The decision is based upon the provisions of Section 5(1 )(c)(ii) of the U. P. Consolidation of Holdings Act, 1963 which prior to its amendment by U. P. Act 34/77 prohibited the transfer by way of sale, gift or exchange of any part of a holding in the consolidation area Smt. Asharfunisa Begum Vs. Dy. Director of Consolidation Camp at Hardoi and Others, was in interpretation of that provision and was mere to the effect that the provision did not prohibit the transfer of a full holding. The law there was subsequently amended in 1974 to prohibit the transfer of the whole of the holding as also its part. The further observations by the Commissioner regarding Sections 34 and 35 of the Act have no application since those provisions apply to only areas in respect of which notification u/s 41 has been published. So far as the provisions of the Orissa Act is concerned it, in unmistakable terms, prohibits the transfer of any agricultural land and hence undoubtedly the bar applies to either the whole or part of the holding. 4. Mr. So far as the provisions of the Orissa Act is concerned it, in unmistakable terms, prohibits the transfer of any agricultural land and hence undoubtedly the bar applies to either the whole or part of the holding. 4. Mr. Dey however contends that the bar u/s 4(2) of the Act did not apply to the case at hand inasmuch as neither the notification u/s 13(1) had been published by the date of the sales nor the lands are agricultural lands but are homestead ones. 5. It is the specific averment in the writ petition that the impugned sales were made after publication of the notification u/s 13(1). It is the submission of Mr. Misra, learned counsel appearing for the petitioners, that since no counter-affidavit has been filed traversing such statement, the fact must be taken to have been admitted on the principle of non-traverse. He has also pointed out that in both the objections filed before the Commissioner to the petition for intervention, such stand was specifically taken by both Padmalabha and the opp. party No. 11. It is thus his submission that objection raised by Mr. Day is not open to be canvassed at this stage. 6. As regards the contention that the lands purchased under the sale deeds are homesread lands we find that the opp. party No. 11 even in his own revision before the Commissioner had stated such fact. Section 4(2) only prohibits transfer of agricultural lands and specifically excludes lands covered under the explanation to Section 2(f) which provision includes homestead land. Hence if the lands involved in the present case are homestead lands, the objection of the petitioners or that of the opp party No. 11 u/s 4(2) would have no force. Admittedly the commissioner has not addressed himself to the question the case having been disposed of merely on the basis of the decision of the Allahabad High Court. Since the question involves an investigation of facts, we think it proper, while setting aside the order of the Commissioner in Annexure-2, to remit the case to him to determine whether the lands are homestead lands. Since the question involves an investigation of facts, we think it proper, while setting aside the order of the Commissioner in Annexure-2, to remit the case to him to determine whether the lands are homestead lands. Since the case is going back we also think, in the facts and circumstances of the case, it to be in furtherance of justice that the Commissioner should also determine as to whether the transfers by Susila were made after publication of the notification u/s 13(1) of the Act. Once such, facts are determined the Commissioner shall thereafter decide the matter in accordance with law as discussed above. 7. In the result, the petition is allowed, but in the circumstances there shall be no order as to costs. Final Result : Allowed