JUDGMENT : R.K. Patra, J. - The legal representatives of the deceased defendant No. 1 are the appellants against the reversing judgment of the learned Subordinate Judge, Bhadrak who has decreed the plaintiffs suit for declaration of right and title over the suit land and their entitlement to get vacant oossession of the suit house. 2. The respondents 1 and 2 are the plaintiffs. Their case is that they are the daughters of one Rama Sahu who died in the year 1950 leaving behind his widow Subarna, a son called Sukuti and the plaintiffs. After death of Rama Sahu, his son Sukuti and widow (mother of the plaintiffs) became the owners in possession of the suit land. Following the death of Sukuti in the year 1970 their mother Subarna became the full owner of the property. She died in the year 1972 leaving behind the plaintiffs and her successors-in-interest who were staying in the house of their father's-in-law. On 1 8-1977 when the plaintiffs were repairing the suit house standing on the suit land, the original defendant No 1 by breaking open the lock of the house forcibly entered into it On query being made, he disclosed that Subarna had sold the land to him for consideration. Taking advantage of the old age and illness of their mother Subarna, the defendant No. 1 took her to Dhamnagar on the plea of filing application before the Tshasildar to mutate her name in respect of her property but fraudulently obtained a sale-dead from her. According to the plaintiffs, the deed was not read over and exolained to Subarna nor any consideration passed thereunder and was not otherwise acted upon. On these allegations, the suit was filed claiming for declaration of their right, title and interest and confirmation of possession over the suit land and alternatively for recovery of possession of the same. Their further prayer was to declare the sale-deed executed by their mother Subarna in favour of the original dafendant No. 1 as void and in case the sale-deed is found valid, then a decree for partition. The defendant No. 1 contested the suit and in his written statement, he pleaded that the document in question is a genuine sale-deed and Subarna after fully Knowing the contents thereof executed it for consideration of Rs. 1000/-. 3. The defendant No. 1 contested the suit and in his written statement, he pleaded that the document in question is a genuine sale-deed and Subarna after fully Knowing the contents thereof executed it for consideration of Rs. 1000/-. 3. The learned Munsif on the basis of evidence adduced in the case held: (i) Subarna did not instruct D.W- 2 to scribe the deed (Ext. H) and there was no passing of consideration thereunder on account of which the defendant No. 1 has not acquired any right, title and interest over the suit land ; (ii) The defendant No. 1 is in possession of the suit land, (iii) The suit is barred by limitation in view of the fact that the same was filed in the year 1977 although the fact of the execution of the deed in question came to the plaintiffs' notice one month after the death of Subarna in the year 1972. The learned Munsif denied the relief to the plaintiffs with regard to their right, title and interest over the suit land and eviction of the defendants from the suit house. He, however, decreed the suit over Ac. 002 decimals of land in plot No 263 for which there was no contest, The decision of the learned Munsif dismissing the suit as indicated above was appealed against. As there was no cross appeal or cross-objection by the defendants the findings of the learned Munsif that the deed in question was not read over and explained to the executant Subarna nor any consideration passed thereunder became final. On the basis of the said findings, the learned Subordinate Judge held that the impugned document is a void one for which Art. 113 of the Limitation Act, 1963 would be applicable and the prescribed period of limitation being 12 years the suit is within time. He accordingly decreed the plaintiffs' suit declaring their right, title and interest over the suit land and for recovery of the house. 4. He accordingly decreed the plaintiffs' suit declaring their right, title and interest over the suit land and for recovery of the house. 4. The finding of the learned Subordinate Judge that the period of limitation for filing the suit in question is 12 years which is governed by Art, 113 of the Limitation Act, 1963 and not by Art, 60 is the subject-matter of challenge in this appeal, At this stage, it is relevant to observe here that the learned Subordinate Judge has wrongly referred to Art, 113 of the Limitation Act, 1963 which is a residuary article applicable to every variety of suit not otherwise provided for in the schedule of the Act. He should have referred to Art. 65 of the Limitation Act, 1963 which prescribed 12 years as a period of limitation in respect of a suit for possession of immovable property or any interest thereon based on title. The trend of discussion made by him in the impugned judgment would show that he had Art. 65 in view, but wrongly referred to Art. 113 which prescribes only 3 years as the period of limitation in respect of suits not otherwise provided for in the schedule. 5. Art, 69 reads as follows : "59. To cancel or set aside Three When the facts an instrument years, entitling the piain- or decree or for the resci- tiff to have theinstr ssion of a contract ument or decree can- celled or set aside or the contract res- cinded first became known to him." A bare reading of the aforesaid article would show that its first part, namely, "to cancel or Set aside an instrument", in terms applies only to suits to have instruments avoided. To get the hand of the issue involved in the case, the distinction between a void and voidable transaction needs to be noted. Lord Denning speaking for the Privy Council in Macfoy v. United Africa Co. Ltd. (1861) 3 A ER 1169 opined that "the distinction between the two (void and voidable) has been repeatedly drawn. If an act is void, then it is in law a nullity, it is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. If an act is void, then it is in law a nullity, it is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse....But if an act is only voidable, then it is not automatically void. It is only an irregularity which may be waived. It is not to be avoided unless something is done to avoid it. There must be an order of the Court setting it aside and the Court has a discretion whether to set it aside or not. It will do so if justice demands it but not otherwise,. Meanwhile it remains good and a support for all that has been done under It." 6. The Supreme Court in Ningawwa v. Byrappa Shiddappa Hireknrabar, AIR 1968 SC 986 had the occasion to consider as to in what circumstances a transaction would be held to be void or merely voidable. In paragraphs 4 and 5 of the judgment the Court observed : "It is well established that a contract or other transaction induced or tainted by fraud is not void but only voidable at the option of the party defrauded. Until it is avoided, the transaction is valid, so that third parties without notice of the fraud may in the meantime acquire rights and interests in the matter which they may enforce against the party defrauded......The legal position will be different if there is a fraudulent misrepresenta- tion not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. With reference to the former, it has been held that the transaction is void, while in case of the latter, it is merely voidable." In Appanna v. Jami Venkatappadu, AIR 1953 Mad 611 a Division Bench consisting of Ragamannar, C. J. and Venkataram Aiyar, J. by referring to Art. 91 of the Limitation Act. With reference to the former, it has been held that the transaction is void, while in case of the latter, it is merely voidable." In Appanna v. Jami Venkatappadu, AIR 1953 Mad 611 a Division Bench consisting of Ragamannar, C. J. and Venkataram Aiyar, J. by referring to Art. 91 of the Limitation Act. 1908 held as follows : "Art 91 of the Limitation Act provides for a period of three years for a suit to cancel or set aside an instrument, not otherwise provided for. This article presupposes that a suit is necessary under the law to set aside the instrument. But, where under the law there is no duty cast on the person to get an instrument set aside, this article does not impose any obligation on him to get it set aside. We must, therefore, have recourse to the substantive law to ascertain whether a party to an instrument should get that cancelled or not. Now the authorities have established that for this purpose there is a distinction between voidable and void transactions and that while the former class of transactions should be set aside, the latter need not be. The reason for this distinction is that in the case of a voidable transfer the title to the properties vests in the transferee on the execution of the deed and that it can revest in the transferor only by a decree of Court rescinding the transfer on grounds such as coercion, undue influence or fraud. To such a suit, Art. 91 prescribes the period of limitation and if no suit is filed within the time limited thereby the transferor loses his right to avoid the sale and the title of the transferee becomes unimpeachable. Thereafter, it is not open to the transferor to sue for possession of the properties ignoring the deed because the right to possession is an adjunct to the title to the properties and that had passed to the transferee and had become unimpeachable by the operation of Art. 91, But different considerations arise when the instrument, of transfer is void and does not operate to vest the title in the transferee. In that case, the transferor continues to be the owner of the properties even after the execution of the instrument precisely as before. In that case, the transferor continues to be the owner of the properties even after the execution of the instrument precisely as before. There is no need in such a case for the transferor to move the Court for setting aside the deed because there is no transfer which the Court has to rescind and if the transferor has to recover possession of the properties covered by the deed, he can ignore the deed and recover on the strength of his own title. To such a suit the period of limitation applicable is under Art. 144 and not Art. 91, If in such a suit there is a prayer for cancellation of the instrument, it can only be regarded as ancillary to the substantive prayer, for possession and can be treated as mere surplusage." In paragraph 7 of the judgment, the Bench further opined that ; "The authorities thus establish that when a deed of one character is executed on a representation that it is of a different character then it is wholly void and inoperative. Such a deed does not require to be set aside under Art. 91 and a suit to recover possession of the properties comprised therein would be governed by Arts. 142 and 144 of the Limitation Act. The fact that there is a prayer for a declaration that the deed is void or that it should be set aside does not affect the position, such prayers being ancillary to the substantive prayer for possession..." In Baidi Singh Vs. Singrai Murmu and Others this Court held that if an instrument is void and inoperative in its inception it is not necessary for the plaintiff to seek the cancellation of the instrument and if. on the other hand, the transaction is merely voidable, the plaintiff cannot recover possession till he has avoided the instrument. 7. In the back-drop of the legal position aforesaid, let me have a look at the reliefs claimad in the plaint. The plaintiffs besides praying for a declaration that the instrument dated 5-4-1972 is void, have claimed for declaration of their right, title and interest and confirmation of possession or alternatively for recovery of possession of the suit land and the house standing thereon. It is their specific case that the original defendant No. 1 prevailed upon Subarna. The plaintiffs besides praying for a declaration that the instrument dated 5-4-1972 is void, have claimed for declaration of their right, title and interest and confirmation of possession or alternatively for recovery of possession of the suit land and the house standing thereon. It is their specific case that the original defendant No. 1 prevailed upon Subarna. and took her to Dhamnagar on the plea of filing an application before the Tahasildar to mutate her name in respect of her property but fraudulently obtained a sale deed from her. On reading the plaint as a whole, it has to be held that there was fraudulent misrepresentation as to the character of the document in that the defendant No 1 got the disputed document executed by Subarna by mis-representing that it was an application before the Tahasildar to get her name mutated in respect of the lands but in reality it was not an application, but a sale-deed In the circumstances, the sale-deed dated 5-4-1972 (Ext. H) has to be dubbed as avoid. No doubt the plain- tiffs have prayed for a declaration that the document is void. In my considered opinion, such a prayer is a surplusage. If the Court voids an instrument, there remains nothing for the Court to cancel or set aside it as Lord Denning in the case of Macfoy (supra) has said that such instrument is "not only bad but incurably bad" and in law it is a nullity. The plaintiffs' suit is essentially a suit for recovery of possession based on title and the prayer made by then that the disputed document is void, is otiose. Thus, Art. 59 of the Limitation Act, 1963 has no application and the appropriate article that comes into play is Art. 65 of the Limitation Act, 1963 for which a period of 12 years has been prescribed as the limitation for filing the suit for possession of the immovable property based on title. The disputed transaction is in the year 1972 and according to the plaintiffs, they could know about the fraudulent nature of the deed one month after the death of Subarna who died in the year 1972. The disputed transaction is in the year 1972 and according to the plaintiffs, they could know about the fraudulent nature of the deed one month after the death of Subarna who died in the year 1972. The suit having been filed in the year 1977, the same is within the period of limitation as prescribed under Art. 66 of the Limitation Act, 1983 and the ultimate conclusion of the learned Subordinate Judge that the suit is not barred by limitation and the plaintiffs have right, title over the suit land they are entitled to recover the suit house standing thereon cannot be faulted with. 8. In the result, there is no merit in this appeal which is accordingly dismissed with costs. Final Result : Dismissed