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Rsamchander Naik Vs. Linga Ramachanderiah (Died) L. Bhoiavva and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAndhra Pradesh High Court
Decided On
Case NumberC.C.A. No. 36 of 1964 and C.R.P. Nos. 369 and 2126 of 1969
Judge
Reported inAIR1971AP395
ActsLimitation Act, 1908 - Schedule - Article 120; Code of Civil Procedure (CPC), 1908 - Order 2, Rule 2; Hyderabad Land Revenue Act, 1317 - Sections 67, 68 and 68A; Evidence Act, 1872 - Sections 91; Registration Act, 1908 - Sections 49
AppellantRsamchander Naik
RespondentLinga Ramachanderiah (Died) L. Bhoiavva and ors.
Appellant AdvocateJaleel Ashamed, ;B.G. Paropakari and ;B.G. Paropkari, Advs.
Respondent AdvocateM.S. Narayanacharyulu and ;C.T. Roy, Advs. for ;P. Ramchandra Rao and ;Abdul Abbasi, Advs. ;R. Kondsaiah, Adv.
Excerpt:
.....to infringe the right asserted by the plaintiff in the suit. whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right. 10. the next and more important question for consideration is whether the requirements of section 67 of the hyderabad land revenue act are satisfied in this case so as to entitle the plaintiff to the defalcation that he is a shikmidar in respect of the suit lands. as it was already seen that the other requirements of section 67 also have been satisfied in this case, there can hardly be any doubt that the plaintiff had acquired shikmidari rights in the suit lands even by 1954 as was held by the court below. 41/59 us therefore liable to fail. 28 (1) of the..........9th october 1954 directing the grant of a tenancy certificate to the plaintiff in respect of the suit lands became final.4. shortly after filing o. s. 46/53-54, the plaintiff issued a notice, ex. a-10 dated 14-10-1954 to ramachandra snaiks stating that he has been in possession of the suit lands as a tenant for more than 36 years by then. that as a result of the unlawful attempts made by the latter to dispossess him of the lands. he sustained loss to the tune of several thousands of rupees and that even after setting off the 'cuist' payable by him to the landlord, a sum of rs. 704-4-0 was still due outstanding from the latter on account of the damage caused to him and that legal action would be instated for recovery of the said sum if it was not paid within two weeks from the date of.....
Judgment:

Venkateswara Rao, J.

1. C. C. C. A. No. 36 of 1964 is directed against the judgment and decree in O. S. 41/59 on the file of the First Additional Judge. City Civil Court, Hyderabad, while the revision petitions arise out of proceedings under the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act (XXI of 1950), which will hereinafter be referred to as 'Tenancy Act'. Defendant No. 1 in the suit, who was also the petitioner in the proceedisngs under the Tenancy Act, has preferred the appeal and the revision petitions.

2. The subject -matter of this lsitigations is 303 acres of pasture land knows as 'Barman Cheru Kancha' and comprised in S. Nos. 261 to 279 of Jeedimetla village. Late Govinda Naik. the father of the defendants, was the original pattadar of this land and it is also common ground that she inducted the plaintiff into possession of the same as tenant in aborts the year 1918 or 1919.

3. In September, 1952, the plaintiff filed O. S. 46/53-54 in the Court of the Munsif-Magitrate, East. Hyderabad against the 1st defendant. Rsamchadra Naik, and four others for a declaration of his right to possession of the lands in dispute and also for a permanent injunction restraining the defendants therein from interfering with his possession. claiming to be a protected tenant. This suit was declared in part by the Trial Court and ax prayed for by the appellate Court. This decree was confirmed by the High Court in S. A. No. 201/2 1954-55 201/2 1954-55 on 23-3-1960 with only a slight modification that 'the appellant (Ramchandra Naik) would be entitled to such remedy as against the tenant respondent which he may have under the tenancy Act'. On the same day, the High Court dismissed C. R. P. No. 1868 of 1967 preferred by Ramachandra Naik with the result that an order made by the Tahsildar. Medical, on the 9th October 1954 directing the grant of a tenancy certificate to the plaintiff in respect of the suit lands became final.

4. Shortly after filing O. S. 46/53-54, the plaintiff issued a notice, Ex. A-10 dated 14-10-1954 to Ramachandra snaiks stating that he has been in possession of the suit lands as a tenant for more than 36 years by then. that as a result of the unlawful attempts made by the latter to dispossess him of the lands. he sustained loss to the tune of several thousands of rupees and that even after setting off the 'cuist' payable by him to the landlord, a sum of Rs. 704-4-0 was still due outstanding from the latter on account of the damage caused to him and that legal action would be instated for recovery of the said sum if it was not paid within two weeks from the date of receipt of the notice. No reply was sent to this notice by Ramachandra Naik. But in June 1957, he sent a petition by post to the Tahsildar, Medchel complaining that the plaintiff did not pay him rent at the agreed rate of Rs. 1,200/- per annuls for five years before then. The plaintiff filed counter to this petition contending sambaing other things that he incurred heavy loss on account of the several attempts made by the landlord to dispossess him and that the Tahsildar has. in any view, no jurisdiction to order payment of rent for more than three years. Pending disposal of this petition, Ramachandra Naik sent a notice, Ex. B-4 dated 7-6-1958 under S. 19 of the Tenancy Act to the plaintiff, terminating his tenancy on the ground that he was in arrears of rent for six years before then. He followed it up by filing another, petition before the Tahsildar. Medical, under Sections 19, 28 and 32 of the Tenancy Act for eviction of the plaintiff for alleged default in payment of rent for a continuous period of more than three years. The plaintiff did not deny in his counter to this applications that he was in arrears of rent and simply pleaded that he cannot be considered defaulter as the loss which he sustained as a result of the landlord's high-handed attempts to dispossess him of the property was far in excess of the rent which was due to him. Both the petitions filed by the landlord were disposed of on the same day, viz., 13-9-1959. In the earlier petition for arrears of rent, the Tahsildar, granted a 'decree' to the landlord and directed the tenant to pay the landlord or credit into the Tahsil O. S. Rs. 1,324/- representing the rent for three years commencing from 1955. In the other petition for eviction also, he passed a decree for Rs. 882-12 and directed the 'P. T.' (petitioner tenant) to pay that amount to the 'owner' or credit the same into the Tahsil within 15 days. Both the orders were confirmed in appeal by the Collector and it is to Austin the legality of these orders that the landlord filed C. R. P. Nos. 369 and 2126 of 1969.

High5. Just a couple of days prior to the disposal of the aforesaid petitions by the Tahsildar, the plaintiff filed the suit that has given rise to C.s C. C. A. No. 36/64 against Ramachandra Naik and his brother, for a declaration that he is Shikmidar of the suit lands and is therefore entitled to permanent rights of occupancy in those lands and also for an injunction restraining the defendants from interfering with his possession alleging, among other things, that he has been in possession of the lands as a tenant for over 42 years and for more than 12 years continuously by 4-2-54 without any agreement stipulating the period of tenancy and has therefore acquired Shikmidari rights by virtue of Sec. 67 of the Hyderabad Land Revenue Act but that the defendants have been denying his rights and trying to dispossess him of the land. This suit was resisted by the defendants who filed written statement pleading inter ail that it is barred by limitation and also Order II, Rule 2 C. P. C., that the plaintiff is, in any view, not entitled to the reliefs prayed for by him since his possession of the suit lands was the result of periodical engagements with the landlords and not without any stipulation regarding the period of tenancy's that the 2nd defendant is not a necessary party and that the plaintiff's claim for injunction is untenable. On a consideration of the evidence adduced by the parties, the learned trial Judge accepted the defendants' contention that the 2nd defendant is not a necessary party and exonerated him with costs. On all the other material issues, however, he found in favour of the plaintiff and accordingly decreed the suit with costs against the 1st defendant. Hence the appeal by Ramchandra Naik.

6. We proposes to deal in the first instance with the various contentions raised ins the appeal. Sri Jaleel Ahmed the leaned counsel for the appellant argued that while correctly finding that the suit is governed by Article 120 of the Limitation Act, 1908, the Court below fell into a serious error in rejecting the plea of limitation notwithstanding that the plaint averments themselves disclose, in no uncertain terms, that the plaintiff's right to the suit landss was denied more than six years prior to the date of suit: and that it likewise went wrong in its conclusion that the plaintiff had possession of the suit lands as tenant for a continuous period of 12 years by 4-2-1954 without any stipulation regarding the period of tenancy and has consequently become entitled to Shikmidari rights in the lands. It was further urged by him that the learned trial Judge was, in any view, not justified in unconditionally granting the relief of injunction to the plaintiff when it is always open to the landlord to evict him from the lands for non-payment of rent even if he were to be a Shikmidar. We will now proceed to examine if and how far these contentions are well-founded.

7. The suit is governed by the provisions of the Indian Limitation Act 1908 (Act IX of 1908) as it was instituted in the year 1959. It is also not in dispute that it is Article 120 of the said Act that is applicable to the suit which, as already stated, is filed for declaration of plaintiff's Shikmidari rights in certain lands, since no period of limitation for such a subsist is provided elsewhere in the 1st Schedule to the Limitation Act. the period of limitation prescribed by Art. 120 is six years when the right to sue accrues. Having regard to the allegation contained in the plaint that the cause of action for the suit arose on 4-2-59 when Ramchnadra Bake started proceedings for eviction against the plaintiff. the learned trial Judge held that the suit. which was filed in the same years, in in time. This finding of the Court below was vehemently attacked by Sri Jaleel Ahmed, ass. according to him. the 'right to sue. which is synonymous which 'cause of action' as pointed out in Gopal v. Ramchanrad, (1902) ILR 26 Bom 597 at p.. 599 accrued to the plaintiff in this case more than six years prior to the institution of the suit even according to the averments contained in the plaint. He referred to paragraph 5 of the plaint which it was stated.

'The defendants have denied the plaintiff's vested rights and Shikmi in respect of the suit lands. The defendants having taken law in their hands are trying to dispossess the plaintiff from the last 7 years. The plaintiff on account of the ill-intentions and mischief's of the defendants was entangled in various Revenue, Civil, Criminal and Police cases between himself and defendants lasting for years as a result of which the plaintiff had to bear considerable loss and expenses of huge and heavy amounts only to safeguard the right of permanent occupancy and enjoyment'

and contended that these averments would clearly bring to that there was an unequivocal denial of the right claimed by the plaintiff as also an effective threat to his possession of the lands more than six years prior to the date of the institution of the suit and that the suit institution of the suit and that the suit is therefore, barred by limitation. Reliance is placed by him on Satyanarayana v. Narasimha : [1966]1SCR628 in which it was pointed out that the right to sue accrues for the purpose of article 120 when there is an accrual of the right asserted in the suit and equivocal threat by the other party to infringe it. We are, therefore, however unable to agree that there however unable to agree that there was any such unequivocal threat to the plaintiff's right to as to constitute in infringement thereof more than six years prior of the date of the institution of the suit simply because it was averred in paragraph 5 of the plaint that the defendants were 'trying to dispossess' the plaintiff for the last 7 years. It is not necessary the plaintiff should rush to Court within 6 years from the date of denial of threat. It is always open to him to treat only such denial or threat which in his opinion amounts to an effective and unequivocal invasion or infringement of his right as the starting point for computing the period of limitation. It is now not in dispute that the plaintiff has been in continuos possession of the suit lands ever since he was inducted in them by lt. Govinda Naik in about the year 1918 and that there was never a break in his possession . It would therefore be unreasonable to hold that any and were threat to his possession or right to hold possession, however innocuous it might be would amount to accrual of the right to sue. We are unable to agree with Sri Jaleel Ahmed that the words 'when the right to sue accuser' occurring in Col.3 of Art. 120 should be understood as meaning invariably and irrespective of the facts and circumstances of a particular case as 'when the right to sue first accuser.' It will be useful to extract in this context what a Division Bench of the High Court of Madras said in P. Appear v. Secy. of State, AIR 1938 Mad 193, on the question as to when the right to sue should be deemed to have accrued.

'There is nothing in law which says that the moment a person's right is denied, he is bound at the peril touring a suit for declaration. The Government beyond passing the order did nothing to distribute the plaintiff's possession, It would be most unreasonable to hold that a bare repudiation of a person's title without even an ever act would make it incumbent on him to bring a declamatory suit. A party surely has a declamatory suit. A party surely has a right to elect as to when he may bring a suit for vindicating his right. when there are several or successive denials. If a person's right is called in question, he may ignore that particular attack or challenge; but that does not mean that a fresh attack does not give rise to a fresh cause of actin. There are may be an ineffectual threat. a Butum Fulmen; see the judgment of Courts Trotter. C. J. in ILR 47 Mad 927 =(AIR 1924 Mad 825). which a person may ignore, without his right to bring a suit in respect of a subsequent invesation being impaired.'

It was already noticed that in the case under consideration also plaintiff's possession of the lands remained intact inspire of the fact that the defendant started threatening to dispossess him about 7 years prior to the date of the suit. indicating that they were only empty and not unequivocal threats. The only effective step which the defendant had taken for the purpose of depriving the plaintiff of possession of the suit lands. was his application dated 4-2-1959 to the Tahsildar for eviction of the latter and it is. therefore, too much to say that there was an unequivocal denial of the plaintiff's right on the very first day when the defendant threatened him with dispossession about 7 years prior to the date of suit. We may refer in his context to Rukhmabi v. Laxminarayan. : [1960]2SCR253 in which it was pointed out by their Lordships;

'There can be no 'right to sue' until there is an accural of the right asserted in the suit and its infringement. or at least a clear and unequivocal threat to infringe that right. by the defendant against whom the suit is instated. x x x x x Where there are successive invasions or denials of a right, the right to sue under Article 120 accuser when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such aright. however ineffective and innocuous it may be cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right.:

8. Even assuming for a moment that the every first threat by the defendant to dispossess the plaintiff sever years before the at of the suit was unequivocal in nature. it can still not be said that the suit is barred by limitation as that threat must be deemed to have been removed the moment the plaintiff filed the earlier suit O.S. 46/53-54 in the Court of the Munsif-Magistrate. Hyderatbad East and obtained an injunction restraining the defendant and others from interfering with the possession of the lands. That suit was decreed on 31-3-1954 as can been from the judgments of the appellant Court which is marked as Ex. A-6 in this case. In fact. Ramachandra Naik himself admitted in the court Naik himself admitted in the course of his evidence as D.W. 1 that he did not so anywhere. near the suit lands after O.S. 46/53-54 was decreed. because of the relief of injunction granted by that by that decree to the plaintiff It is thus clear that pre-existing unequivocal threat, if any was removed with effect from 31-3-54 when the plaintiff obtained the decree for injunction in the prior suit; the only other attempt at infringing the rights of the plaintiff and which forded him a cause of action to sue was on 4-2-1959 wheat he defendant applied to the Tahsildar for his eviction from the suit lands. As the suit was filed on 31-8-1959. i.e. within a few months after the right to sue had accrued. we have to find. agreeing with the court below. that it is not barred by limitation.

9. No serious attempt is made to say that the suit is barred by Order II. Rule 2. C.P.C. evidently because of the untenable nature of any such contention. The prior suit, O.S. 46/53-54 was based on plaintiff's right to possession of the lands as a protected tenant whereas the relief sought in the present suit is a declaration that he is Shikmidar and is therefore, entitled to permanent rights of occupancy in the lands. The two suits are thus based on two distinct and independent causes of action. The court below was therefore correct in its conclusion that O. II R. 2 C.P.C. is not a bar to the maintainability of the suit.

10. The next and more important question for consideration is whether the requirements of Section 67 of the Hyderabad Land Revenue Act are satisfied in this case so as to entitle the plaintiff to the defalcation that he is a Shikmidar in respect of the suit lands. This Section, in so far as it is material for our purpose, lays down that where no agreement has been made between the pattadar and Asami Shikmi pertaining to the period of possession, and the possession by the Asami Shikmi has been for continuos period of twelve years, he shall be deemed to be a Shikmidar and he shall have permanent right as against the pattadar. In order to be entitled to the benefits of this section the plaintiff has to establish (1) that he was as Asami Shikmi (2) that he had possession of the suit lands of a continuous period of 12 years as an Asami Shikmi and (3) that such possession is not there suit of an agreement made between him and the pattadar pertaining to the period of possession. Asami Shikmi according to Section 2 (13) of the Hyderabad Land Revenue Act means's a lessee. whether holding under an instrument under an oral agreement and includes a mortgagee of as Asami shikmi's rights with possession but does not include a lessee holding directly under Government.

11. The evidence of the plaintiff who examined himself as P.W. 5 that he was been in possession of the lands as tenant for over 40 years by the date suit was not questioned in cross-examination and so received support form D.W.1 the 1st defendant himself. His evidence would show that his father. Govinda Naik passed away in 1938 or 1940. He stated in unmistakable terms that 'the plaintiff had been possession of the suit lands continuously for 20 years' during the time of his father pursuant to lease granted to him. It cannot . therefore be denied that the plaintiff was an Asami Shikmi and held possession of the suit lands in that capacity of r continuos period of long over 12 years. A feeble attempt was however made for the appellant to say that in order to entitle as Asami Shikmi to the benefits of Section 67 of the Hyderabad Land Revenue Act. his possession should be of agricultural lands and not pasture or grazing lands as in this case. which were brought within the ambit of agricultural lands for the first time on 4-2-1954 when the definition of the expression 'land' occurring in the Tenancy Act was amended so as to include pasture lands also.

Learned counsel also invited our attention to the definition of 'land' contained in Section 2(c) of the Hyderabad Asami Shikmis Act. No.1 of 1354 Fasli to contend that the land possession of which is held by an Asami shikmi, should be agricultural land before he can claim Shikmidari rights under Section 67 of the Hyderabad Land Revenue Act. We do not however find any merit in this contention. The definition of the word 'land' occurring in the Hyderabad Assign Shikmis Act cannot be called Indian by the appellant as that Act was repulsed long prior other date of the institution of the suit by Section 103 of the Tenancy Act He cannot also be permitted to have recourse to the definition of 'land' contained in Section 2 of the Tenancy to say that possession by the Asami Shikmi should be of agricultural land before he can lay claim to Shikmidari rights under Section 67 of the Hyderabad Land Revenue Act, as the Land Revenue Act itself definers 'land' in Section 2 (1) (b) as including.

'all kinds of benefits pertaining to land or things attached to the earth, or permanently fastrended to things attached to the earth and also includes shares in. or charges on the revenue or rent which are or may be levied on villages. or other defined areas.'

When the Act conferring Shikmidari rights on Asami Shikmis itself contains such a comprehensive definition of the term 'land' so as to take in non-agricultural lands also. it is futile to contend that what Section 67 of the Hyderabad Land Revenue Act contemplates is possession of Agricultural land not other categories of land such as pastures by an Asami Shikmi to enable him to claim Shikmidari rights.

12. As it was already seen that the plaintiff has been incognitos possession of the suit lands ever since he was inducted into them as a lessee or Asami Shikmi by late Govinda Naik in about 1918, the only other thing to be established by him to be entitled to the benefits of section 67 of the Hyderabad Land Revenue Act is that there was no agreement between him and the pattadar pertaining to the period of possession.

13. On a consideration of the evidence placed before him the learned trial Judge came to the conclusion that the plaintiff, on whom the burden lab-has succeeded in establishing that he had possession of the suit lands without any agreement stipulating the period for a counties period of 12 years subsequent to 1941-42 and that he is.. therefore entitled to the benefit of Section 67 of the Hyderabad Land Revenue Act. This finding of the Court below was sought to be assailed mainly on the ground that it was made in utter disregard of certain admissions made by the plaintiff himself in court of his evidences P.W. 1 in O.S 46/53-54. It is also contended that the learned First Additional Judge committed mistake in thinking that Exs. B-1 and B-2 relied upon by the appellant are inadmissible in evidence for want of registration and that this error had influenced his decision. about the genuineness of those two important documents.

14-15. [After considering the evidence his Lordship proceeded.]

16-18. The documentary evidence relied upon by the defendant consists of Exs. B-1 and B-2. They are styled kabuliats and purport to have been executed by Bhojayya (P.W. 1) the son of the plaintiff, in favour of Ramachandra Naik on 9th Shehrewar 1355 Fasli. The recitals contained in them would indicate that ex. B-1 for cultivating the lands during Fasil 1356. The rent stipulated in them is Rs. 700/- and Rs. 1225-5-0 respectively. The genuineness of these documents is disputed by the plaintiff. The learned trial Judge no doubt erred in thinking that Exs. B-1 and B-2 are inadmissible in evidence for want of registration notwithstanding that they are agricultural leases for a term not exceeding one year and are sought sought to be used only for a collateral purpose viz., to establish that plaintiff's possession of the suit lands was the result of an agreement made between him and the pattadar pertaining to period of possession, but he assigned very cogent reasons in support of his conclusion that the documents were not executed by the plaintiff or his son. (After considering the evidence his Lordship proceed).

19. On a careful consideration of the evidence and probabilities obtaining in the case, we have no hesitation in agreeing with the Court below that for long over 12 years prior to 1954 there was no agreement between the parties pertaining to the period of possession. As it was already seen that the other requirements of Section 67 also have been satisfied in this case, there can hardly be any doubt that the plaintiff had acquired Shikmidari rights in the suit lands even by 1954 as was held by the Court below.

20. It was next contended that the Court below went wrong in granting an injunction restraining the defendant from interfering with the possession of the lands by the plaintiff notwithstanding that the latter has admitted not paid the rent due from him for several years prior to the date of the suit and that the learned trial Judge erred in thinking that the plaintiff is not liable to be evicted under any circumstances when once he is found to be Shikmidar within the meaning of Section 67 of the Hyderabad Land Revenue Act. It is true that Section 67-A of the Hyderabad Land Revenue Act entitled the Shikmidar to purchase all the rights of a pattadar in the land held by him as Shikmidar. But it may not be correct to say that even before such a purchase is made by him, a Shikmidar is not liable to be evicted; despite default in payment of rent by him as all that Section 68 of the Hyderabad Land Revenue Act says is that a Shikmidar shall not be evicted from the land in his possession so long as he continues to pay the rent, implying that he could be evicted in case he commits default in payment of rent. We are fortified in this view by Abbanna v. Seshagir Rao , : AIR1963AP208 in which it was held, among other things, that a Shikmidar is liable to be evicted in a civil court under Section 68 if he does not pay the rent. But we are at the same time unable to agree with the defendant that the court below ought not to have granted the relief of injunction to the plaintiff as it is no part of his scale that he has since obtained from a court of competent jurisdiction an order of eviction against the plaintiff on the ground of his having committed default in payment of rent and ass he not entitled to deprive him of possession otherwise than India course of law. The appeal preferred from the judgment and decree in O.S. 41/59 us therefore liable to fail.

21. We have already stated supra the facts giving rise to C.R.P. Nos. 369 and 2126 of 1969. It is contended by the learned counsel, Sri Jaleel Ahmaed, that in view of the proviso to S. 28 (1) of the Tenancy Act, the Tahsildar had no alternative except to direct eviction of the plaintiff as the tenancy was duly terminated for the reasons that he failed for three years to payment within the period specified in sub-clause (1) of Act: and that therefore the Collector ought not to have confirmed the order made without jurisdiction by the Tahsildar. We do not however propose to express any opinion on the tenability or otherwise of this contention in view of our decision that the plaintiff has acquired shikmidari rights in the suit lands even by 1954. The question that now arises is whether in applications made under the provisions of the Tenancy Act. the Tahsildar has jurisdiction to direct the eviction of the plaintiff from the suit lands notwithstanding his having acquired Shikmidari rights in them by virtue of section 67 o the Hyderabad Land Revenue Act. It is, therefore, necessary that the matters should be remitted to the Tahsildar for fresh disposal in the light of the decision in C.C.C.A. 36/64 that the plaintiff became a Shikmidar in respect of the suit lands even by 1954.

22. In the result, therefore the judgment and decree in O.S. 41/59 are confirmed and C.C.C.A. No. 36/64 is dismissed in C. R. P. Nos. 369 and 2126 of 1969 are set aside and the petitions filed by the defendant for eviction of the plaintiff are remanded to the Tahsildar, Medchel, for fresh disposal in accordance with law and in the light of our decision in C.C.C.A. No. 36/64. We leave the parties to bear their respective costs of the appeal as well as the revision petitions in the circumstances of the case.

23. Order accordingly.


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