ORDER M. M. DAS, J. — Heard Mr. Sankarsan Rath, learned counsel appearing for the petitioners and the learned counsel appearing for opp.parties 2 and 3. None appears for the opp.party No.1 though she is represented by a counsel. 2. The petitioners in this writ petition have challenged the order dated 18.9.2003 passed by the Joint Commissioner, Settlement and Consolidation, Bhubaneswar (for short, ‘the Com¬missioner’) in Consolidation Revision No.424 of 2002 confirming the order dated 15.1.1987 passed by the Assistant Consolidation Officer (for short, the ACO’) in Partition Case No.465 of 1996 on the ground that the impugned order passed by the ACO is without jurisdiction and also cannot be sustained on merit. 3. The case of the petitioners is that one Priya Nath Dey was the recorded tenant in the C.S. records of 1928 Settlement in respect of the disputed land. A registered sale deed dated 8.4.1954 was executed by the said Priya Nath Dey in favour of late Satyabhama Dei @ Satya Dei who is the predecessor-in-interest of the petitioners, in respect of the land under C.S. khata No.158 appertaining to plot No.2608-area Ac.0.08, plot No.2625-area Ac.0.04-plot No.2629-area 0.08. The said Satyabhama Dei possessed the above purchased land during her life time. 4. During measurement Settlement operation in the year, 1960-61, late Satyabhama Dei on producing the registered sale deed before the Settlement Authority, the purchased lands were recorded in her name in the draft Record of Rights under a sepa¬rate khata. As during the Settlement operation, the said Satyab¬hama Dei expired, final Record of Rights was prepared in the names of her successors, namely, Sarbeswar Jena-(original peti¬tioner No.1), Gangadhar Jena, Bhaskar Jena and Smt. Pakili Jena. The original petitioner No.1-Sarbeswar Jena having expired during pendency of the writ petition, his legal heirs have been substi¬tuted in this writ petition as petitioner Nos.1 (a) and 1(b). It is claimed by the petitioners that they are in possession of the land in question and were paying rent to the Government. 5. During consolidation operation in the area, the opp.party No.1 filed an application on 5.12.1986 praying to record her name in respect of the plot No.2482, measuring Ac.0.07 under Hal khata No.447 corresponding to consolidation khata No.59, plot No.2054 and C.S. khata No.158, plot No.2608 which has been annexed to the writ petition as Annexure-3. 5. During consolidation operation in the area, the opp.party No.1 filed an application on 5.12.1986 praying to record her name in respect of the plot No.2482, measuring Ac.0.07 under Hal khata No.447 corresponding to consolidation khata No.59, plot No.2054 and C.S. khata No.158, plot No.2608 which has been annexed to the writ petition as Annexure-3. It appears that the said application was registered by the Consolidation Officer as Partition Case No.456 of 1986. 6. The petitioners allege that the ACO without recording any oral evidence and only on perusal of the documents produced by the respective parties, passed the impugned order in the said Partition Case on 15.1.1987 holding that the disputed land origi¬nally belonged to Raja of Kanika and by virtue of a Hatta Patta, Raja of Kanika inducted one Kalandi Charan Ojha as tenant over the said land on 2.4.1945. The said Kalandi Charan Ojha in 1958, transferred the said land to one Siba Pradhan on 5.1.1958 and subsequently, the said Siba Pradhan sold the said land to one Mani Charan Jena on 6.9.1966, from whom the opp.party No.1 pur¬chased the same by a registered sale deed dated 15.1.1974. With regard to the registered sale deeds produced by the petitioners, the ACO came to the conclusion that Priya Nath Dey, the recorded tenant in the C.S. Settlement Records of 1928 had no title to the property and thus, the petitioners have acquired no right, title or interest over the disputed property. The petitioners being aggrieved by the said order, preferred a revision being Consoli¬dation Revision No.424 of 2002 before the Commissioner under Section 37 (1) of the Orissa Consolidation of Holdings and Pre¬vention of Fragmentation of the Land Act, 1972 (for short, ‘the Act’). The Commissioner by the impugned order under Annexure-6 confirmed the finding of the ACO and dismissed the revision. 7. Mr. Rath, learned counsel for the petitioners submits that the ACO could not have registered the application filed by the opp.party No.1 as a Partition Case under Section 7 (1) of the Act. He contends that even assuming that the said application was filed by the opp.party No.1 for partition of the property, the ACO has no jurisdiction under the Act to decide a claim for partition, unless the parties agree for such partition. Mr. He contends that even assuming that the said application was filed by the opp.party No.1 for partition of the property, the ACO has no jurisdiction under the Act to decide a claim for partition, unless the parties agree for such partition. Mr. Rath also submitted that even assuming that the application filed by the opp.party No.1 is an objection under Section 9(3) of the Act, once the claim of the applicant (opp.party No.1) was denied by the petitioners, the ACO had no jurisdiction to decide the case as per the provisions of Section 9(3) of the Act. On the facts of the case, Mr. Rath, contended that both the Forums below have acted erroneously in holding that the property in dispute originally belonged to Raja of Kanika, in the absence of any document in support of such claim made by the opp.party No.1. He, therefore, contends that findings of the Forums below that the land belonged to Raja of Kanika are based on no materials and as such, are perverse. Thus, he submits that the impugned orders being not sustainable in law, both on the ground of want of jurisdiction as well as findings being based on no materials available on record, are liable to be quashed. 8. Though a counter affidavit has been filed by the opp.party No.1 denying all the allegations made in this writ petition and it has been reiterated that the disputed land origi¬nally belonged to Raja of Kanika, which ultimately came to the hands of the opp.party No.1, but no documents in support of the case of the opp.party No.1 have been annexed to the counter affi¬davit. A bare perusal of the impugned order under Annexure-6 unambiguously discloses that the Commissioner also did not peruse any document in support of the claim of the opp.party No.1 except recording that in the order passed in Partition Case No.465 of 1986 by the Asst. Consolidation Officer, it has been stated that the land originally belonged to the ex-intermediary Raja of Kanika who has given a patta in favour of one Kalandi Ojha who subsequently sold the property to one Shiba Pradhan on 5.11.1958 and ultimately, the said property came to the hands of the opp.party No.1. It further appears that though a question was raised by the writ petitioners before the Commissioner that the Asst. It further appears that though a question was raised by the writ petitioners before the Commissioner that the Asst. Consolidation Officer has no jurisdiction to decide right, title and interest under Section 7 of the Act and also has no power to hold the sale deeds produced by the petitioners to be invalid, but the said question has not been answered by the learned Commissioner in the impugned order. 9. On considering the entire impugned order, this Court comes to the irresistible conclusion that the said order has been passed by the learned Commissioner without due application of judicial mind. A perusal of the order passed by the Asst. Consol¬idation Officer in Partition Case No.465 of 1986 on 15.1.1987, against which, the writ petitioners preferred the revision before the learned Commissioner shows that the Asst. Consolidation Officer on verification of the C.S. record found that the suit land has been recorded in the name of Bhaskar Jena (Predecessor-in-interest of petitioner Nos.3, 4 and 5), Sarbeswar Jena (Prede¬cessor-in-interest of petitioner Nos. 1(a) and 1(b), Gangadhar Jena and one Paliki Jena. However, while narrating the facts of the case, the Asst. Consolidation Officer without verifying any document came to the conclusion that the land originally belonged to the ex-intermediary Raja of Kanika. The said order, therefore, also is found to have been passed without due application of mind. 10. Now coming to the question with regard to the jurisdic¬tion of the Assistant Consolidation Officer to decide a case under Section 7(1) of the Act, it would be profitable to quote the proviso to Sub-section (1) of Section 7 of the Act which is as follows :- 7.”Power relating to partition of joint holding, amalgama¬tion of holdings and to determine rent and cess and effect change in the village boundaries :- xx xx xx Provided that a partition on the basis of specific parcels of land may, on an application made in that behalf, be effected- (a) where all the concerned land owners agree, by the Assistant Consolidation Officer or the Consolidation Officer; and (b) where all the concerned land-owners do not agree, by the Consolidation Officer; Provided further that except where all the concerned land owners agree, a partition on the basis of specific parcels of land shall not be effected without giving parties concerned a reasonable opportunity of being heard. xxx xxx xxx” 11. xxx xxx xxx” 11. From the above provision, it is clear that as there was no agreement to partition the land, the Asst. Consolidation Officer had no jurisdiction to decide the dispute as has been done in the present case. Even assuming that the application filed by the opp.party No.1 was an objection under Section 9 (2) of the Act, it is seen that under Sub-section (2) of Section 10 of the Act, all objections which cannot be disposed of by concil¬iation under Sub-section (1) and all other objections including those relating to valuation or the State of Principles or the rent or cess settled under the Act shall be forwarded by the Asst. Consolidation Officer to the Consolidation Officer for disposal. Hence, it was incumbent upon the Asst. Consolidation Officer to refer the application/objection filed by the opp.party No.1 to the Consolidation Officer for disposal and consequently, under the provisions of the Act, the Asst. Consolidation Officer had no jurisdiction to enter into the dispute and decide the same as has been done in the present case. This important ques¬tion of jurisdiction though raised before the learned Commission¬er, has not been dealt with by him in the impugned order.It appears from the writ petition and the counter affidavit that the claim of the writ petitioners that they are in possession over the disputed property has been refuted by the opp.party No.1 who has asserted that she is in possession over the disputed proper¬ty. This being a disputed question of fact, the same cannot be adjudicated upon by this Court in a writ petition. 12. In view of the above conclusions, this Court is of the view that the impugned orders under Annexures-6 and 4 passed by the learned Joint Commissioner, Settlement and Consolidation, Bhubaneswar and Asst. Consolidation Officer, Camp at Guamal, Dist. Bhadrak in Consolidation Revision No.424 of 2002 and Parti¬tion Case No.465 of 1986 respectively, cannot be sustained and are accordingly quashed. The matter is remitted back to the Consolidation Officer, Bhadrak to decide the dispute afresh after giving due opportunity to all the parties to produce documents in support of their claims and adduce oral evidence, if they so choose. The Consolidation Officer, before proceeding with the matter shall issue notice to the writ petitioners as well as opp.party No.1 fixing the date of hearing and proceed with the matter in accordance with law. 13. The Consolidation Officer, before proceeding with the matter shall issue notice to the writ petitioners as well as opp.party No.1 fixing the date of hearing and proceed with the matter in accordance with law. 13. Since the Partition case is of the year, 1986 and, in the meanwhile, more than two decades have passed, the Consolida¬tion Officer shall do well dispose of the case as expeditiously as possible, preferably within a period of three months from the date of communication of this order. It is open to the Consolida¬tion Officer, Bhadrak to make such enquiry on the spot as he may deem fit in the circumstances of the case. The writ petition is accordingly allowed. Petition allowed.