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Sher Ali Mridha Vs. Torap Ali and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1942Cal407
AppellantSher Ali Mridha
RespondentTorap Ali and ors.
Cases Referred and Mir Waziruddin v. Lala Deoki Nandan
Excerpt:
- pal, j.1. this appeal is by the plaintiff and it arises out of a suit for recovery of possession on declaration of the plaintiff's title to the suit land. the land in suit appertains to a raiyati holding belonging to one meru shaikh. meru shaikh died leaving his widow moyna alias nowabjan and two sons abdul ali and akub ali. in 1916 the two sons of meru shaikh mortgaged their 14 annas share in the holding to one benode behari shaha. in 1920, akub ali's son turab ali who is defendant 1 in the present suit, created a usufructuary mortgage in favour of the present plaintiff in respect of the land of this holding. in 1921, the widow of meru shaikh, moyna alias nowabjan, who is defendant 6 in the present suit sold her 2 annas share in the holding to maniruddin and kalimuddin who on their part.....
Judgment:

Pal, J.

1. This appeal is by the plaintiff and it arises out of a suit for recovery of possession on declaration of the plaintiff's title to the suit land. The land in suit appertains to a raiyati holding belonging to one Meru Shaikh. Meru Shaikh died leaving his widow Moyna alias Nowabjan and two sons Abdul Ali and Akub Ali. In 1916 the two sons of Meru Shaikh mortgaged their 14 annas share in the holding to one Benode Behari Shaha. In 1920, Akub Ali's son Turab Ali who is defendant 1 in the present suit, created a usufructuary mortgage in favour of the present plaintiff in respect of the land of this holding. In 1921, the widow of Meru Shaikh, Moyna alias Nowabjan, who is defendant 6 in the present suit sold her 2 annas share in the holding to Maniruddin and Kalimuddin who on their part sold this interest to the present plaintiff on 31st May 1923. In 1922, the mortgagee of the 14 annas interest instituted a suit for enforcement of the mortgage, obtained a decree in that suit and-in execution of that decree purchased the holding himself in 1923. The present plaintiff as a usufructuary mortgagee thereupon deposited the decretal amount and got the said sale set aside. Thereafter on 5th May 1925, the plaintiff instituted a suit for recovery of the money deposited by him in satisfaction of the mortgage dues and obtained a decree against the sons of Meru Shaikh and ultimately in execution of that decree put their 14 annas interest in the holding to sale and purchased the same himself on 14th June 1928. The plaintiff then took delivery of possession through Court of this 14 annas share on 20th December 1928.

2. Thereafter in 1930, the present plaintiff instituted a suit for recovery of possession of one kani of land of the holding basing his title on his purchase dated 31st May 1923 and auction purchase dated 14th June 1928, alleging that after thus acquiring title, he came in actual possession of the entire holding but was subsequently dispossessed from the one kani of land by the defendants on 20th March 1929. This was Suit No. 130 of 1930, of which the plaint is Ex. 2 (b) and the judgment is Ex. F in the present case. In this suit, it was found that the story of plaintiff's getting into actual possession of the land and of subsequent dispossession on 20th March 1929, was a myth. His claim however was decreed on 16th March 1931, on the strength of his title as aforesaid and he succeeded in obtaining possession of that one kani of land in execution of this decree on 13th April 1932. After this there appear to have been disputes between the present plaintiff and defendant 1 regarding the possession of the land of the holding and ultimately defendant 1 instituted a proceeding under Section 145, Criminal P.C., in July 1936 and this proceeding was decided in his favour on 6th November 1936.

3. The present suit was instituted by the plaintiff on 8th July 1937, on the strength of his title by amicable purchase of 1923 and auction purehase of 1928 and symbolic delivery of possession of 20th December 1928, again alleging that after the delivery of the symbolic possession he came in actual possession of the land of the holding, was dispossessed from only one kani of land of which the possession was recovered by him by his title suit No. 130 of 1930, thereafter continued in peaceful possession of the entire holding for some time after which disturbance was caused by the defendants and the order in the proceeding unifier Section 145, Criminal P.C., threw cloud on his title and compelled him to come to the civil Court. The lands of the previous suit are given in Schedule 'Kha' of the present plaint and the remaining lands are given in Schedule 'Ka.' Both the Courts have found title with the plaintiff and that question is not in dispute in the present appeal. The main question raised by the defendants in the case is that the present suit in respect of the lands given in Schedule 'Ka' of the plaint is barred by the provisions of Order 2, Rule 2, Civil P.C., inasmuch as the plaintiff was out of possession of the entire holding before his suit of 1930 and the cause of action in respect of which the present suit has been instituted is the same as the one in respect of which the previous suit was instituted by him.

4. The Court of first instance found that the plaintiff was in possession of the other lands when the title suit No. 130 of 1930 was brought and that he was dispossessed from this land subsequent to the decision of that suit. Consequently, it held that the present suit was not barred by principles of Order 2, Rule 2, Civil P.C. The learned Munsiff therefore decreed the plaintiff's suit. On appeal by the defendants, the Court of appeal below came to the finding that oh the date of the previous suit the plaintiff was not in possession of the other lands; that as a. matter of fact he has never been in aotual possession of the holding as was found also in the suit of 1930; that the cause of action in respect of which the present suit has been instituted is the same as the one in respect of which the Suit No. 130 of 1930 was instituted. On these findings it held that the present suit was barred under Order 2, Rule 2, Civil P.C. and consequently, dismissed the plaintiff's claim in respect of lands of schedule 'Ka' of the plaint.

5. Mr. Ghose, appearing in support of the present appeal, contends as follows : (i) that in order to bring a case within the mischief of Order 2, Rule 2, Civil P.C., cause of action as alleged in the plaint in the previous suit must be shown to be identical with the cause of action as alleged In the plaint in the subsequent suit and the question whether or not the claims in the two suits are in respect of the game cause of action for the purpose of attracting the bar of Order 2, Rule 2, Civil P.C., reference is permissible only to the allegations made in the plaint; (ii) that in any case when the claim in the previous suit was in respect of a property different from the one to which claim is made in the present suit the causes of action in the two suits must be different and consequently Order 2, Rule 2 does not stand in the way of the maintainability of the present claim; (iii) that the findings arrived at by the Court of appeal below that 'the plaintiff had no possession of any of the lands when he brought the 1930 suit' and 'that there was no evidence that he did get into possession any time afterwards' are vitiated by the fact that in coming to this decision the Court of appeal below omitted to take into consideration the material evidence and the circumstances relied on by the Court of first instance. In support of his first point Mr. Ghose mainly relies on the case in Mt. Chand Kour v. Partab Singh ('88) 16 Cal. 98 at p. 157, where their Lordships of the Judicial Committee observed as follows:

Now the cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the grounds set forth in the plaint as the cause of action or, in other words, to the media upon which the plaintiff asked the Court to arrive at a conclusion in his favour.

6. Mr. Ghose contends that this is an authority for saying that whether or not the two suits are in respect of the same cause of action the allegations in the plaint alone would be decisive. He therefore contends that in the previous suit the basis of his claim was his title by amicable purchase and auction purchase, and the symbolic possession dated 20th December 1928; as also the actual possession alleged by him in that plaint. The cause for coming to Court was the subsequent dispossession of 20th March 1929, as alleged by him in that plaint. In the present suit also, no doubt the claim is based on the same title, the same delivery of symbolic possession and the actual possession as before but the cause for coming to Court is now the adverse decision in the proceedings under Section 145, Criminal P.C., as alleged by him in the present plaint. Thus, the present claim is in respect of a different cause of action. Mr. Ghose further relies on Jibunti Nath Khan v. Shib Nath ('82) 8 Cal. 819 Mr. Gupta appearing for the respondents contends that the words 'cause of action' as used in Order 2, Rule 2, Civil P.C., mean and refer to the actual cause of action on which the claim is found by the Court to be really based. He contends that for the purpose of Order 2, Rule 2 what shall have to be determined is what was the cause of action that the plaintiff possessed, and not merely alleged, in respect of which the previous suit was instituted and what is the cause of action which the plaintiff again possesses and not merely alleges, when the present suit is instituted. He relies on the cases in Md. Hafiz v. Mirja Muhammad Zakariya ('22) 9 A.I.R. 1922 at p. 18 and Kali Kumar v. Aslam ('16) 3 A.I.R. 1916 Cal. 161. The relevant portion of Order 2, Rule 2, Civil P.C. runs as follows:

(i) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action;... (ii) where a plaintiff omits to sue in respect of...any portion of the claim, he shall not afterwards sue in respect of the portion so omitted....

7. In order to apply the bar imposed by Order 2, Rule 2 (ii) to a suit, it is, therefore, necessary to find : (1) what was. the cause of action in respect of which the claim was made in the previous suit, (2) whether that cause of action entitled the plaintiff to make also the claim either wholly or in part now made in the present suit. If so, the claim in the present suit shall fail to the extent to which it could have been but was not made in the prior suit.

8. The expression 'cause of action' really means the fact or combination of facts which gives rise to a right of action, the right of suing before a Judge for the realisation of the relief arising out of the infringement of the right. The expression is sometimes used to include the facts which constitute the right and its infringement. Sometimes it is used only to mean the circumstances forming the infringement of the right or the immediate occasion for the action. In the Code of Civil Procedure itself the expression is not used everywhere in the same sense: see Haramony Dasi v. Hari Charan ('95) 2 Cal. 833 in Reed v. Brown (1889) 22 Q.B.D. 128 which is often cited as giving an authoritative definition of the expression and in which the Master of the Bolls cited with approval the definition in an earlier case, defined the expression thus : 'The cause of action is every fact which it would be necessary for the plaintiff to prove if traversed, in order to support his right to the judgment of the Court.'

9. According to this definition everything which if not proved will give the defendant a right to an immediate judgment must be part of the cause of action. According to Tyebji J., in Musa Yakub Mudi v. Mani Lal ('05) 29 Bom. 368 at p. 372 the expression means a bundle of essential facts which it is necessary for the plaintiff to prove before he can succeed in the case.' It is 'the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour' : Mt. Chand Kour v. Partab Singh ('88) 16 Cal. 98. It has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the charaoter of the relief prayed for by the plaintiff. In Gopi Kishna Goswami v. Nil Komul Banerjee ('74) 13 Beng. L.R. 461 at p. 473 Markby J. while trying to find out the meaning of the expression 'cause of action' as used in Section 5, Civil P.C., (1859) observed:

The words 'cause of action' have received a variety of interpretations. Most of these interpretations were, however given upon the English County Courts Act; some were given upon the rules of English Procedure as to changing the venue; some upon the English Common Law Procedure Act of 1852....

10. In proceeding to explain why he considered it useless to make reference to the English authorities in which the meaning of the words 'cause of action' had been so freely discussed, the learned Judge gave his reasons thus:

The learned persons who have participated in that discussion have not arrived at any definition of the words 'qause of action' which they can agree upon as applicable to all provisions of the law in which that expression occurs. And, in my opinion, it is hopeless, to attempt to do so. The widest and the narrowest construction that can be put upon these words only differ in this that of all the events which precede an action, some persons insist on contemplating more and some less, as the cause of that final event. The selection is an arbitrary one and the purposes for which the selection has to be made are too yarious to admit of an agreement upon this point....

11. In Mt. Chand Kour v. Partab Singh ('88) 16 Cal. 98 the Judicial Committee considered the meaning of the expression 'the cause of action' in connexion with the question of application of Section 103 of the then Civil Procedure Code (Act 10 of 1877) (now Order 9, Rule 9 of the present Code). Their Lordships observed 'the cause of action' refers entirely to the grounds set forth in the plaint as the cause of action, or in other words, to 'the media upon which the plaintiff asked the Court to arrive at a conclusion in his favour.'

12. In Pittapur Raja v. Suria Rau ('85) 8 Mad. 520 at p. 119 their Lordships of the Judicial Committee observed that the cause of action in Section 7 of Act 8 of 1859 (now Order 2, Rule 2, Civil P.C.) meant the cause of action for which the suit was brought. In Md. Hafiz v. Mirja Muhammad Zakariya ('22) 9 A.I.R. 1922 their Lordships of the Judicial Committee while explaining the meaning of the expression as used in Order 2, Rule 2, Civil P.C., observed:

'The cause of action' is the cause of action which gives occasion for and forms the foundation of the suit, and if that cause enables a man to ask for larger and wider relief than that to which he limits the claim, he cannot afterwards seek to recover the balance by independent proceedings.

13. The appeal before the Judicial Committee in the last named case arose out of a mortgage suit. The mortgage deed by its Clause 2 provided that the interest should be paid on the bond as each month went by and that if the interest was not paid for six months, the creditor should be competent to realise only the unpaid amount of interest due to him, or the amount of principal and the interest both by bringing a suit in Court without waiting for the expiration of the time fixed. The time was fixed by Clause 7 of the deed and it was that if the amount secured by the bond, with interest, should not be paid after the expiration of three years, the creditor should be entitled to realise by bringing a suit for the whole of the amount of the principal and interest. Three years elapsed after the deed had been executed and no interest was paid, with the result that in the year 1914 the mortgagee had the power, so far the terms of the deed were concerned, either to bring an action for the purpose of realising the security in order to obtain repayment of the full principal money and the interest, or simply of the interest alone. He selected the coarse and on 16th April 1914 he instituted a suit which set out the provision of the bond and the fact that he had elected to prefer the remedies that the bond gave him in respect only of the interest that was then due. This suit was decreed. The mortgagee having died thereafter the representatives of the mortgagee instituted in 1915 the mortgage suit for realisation of the en-tire mortgage money less the amount which had been provided by the proceedings formerly taken. To this suit objection was taken that it was barred by Order 2, Rule 2, Civil P.C. This objection was given effect to by the Judicial Committee. Their Lordships observed:

What was the cause of action that the plaintiffs possessed when the proceedings were first instituted? It was the cause of action due either to the fact that the interest had been unpaid for more than six months or that three years had elapsed and the principal was also unpaid, and in either case, they could have sued for realisation to provide for the whole amount secured by the deed. The plaintiffs purported to prooeed under Clause 2 of the deed, but even in that case the non-payment of the interest was the sole cause upon which they were entitled to ask either for the limited relief that was sought for or the larger relief which they abstained from seeking. It is also important to point out that the only relief that could be sought in both cases was the realisation of the mortgage security, for the mortgage was the simple mortgage containing no express covenant for the payment of the principal and the interest. Their Lordships think therefore that the rules cover the present dispute.

14. From the above authorities it seems clear that in order to apply the provisions of Order 2, Rule 2, Civil P.C., to bar a suit it shall have to be found out, (1) what was the cause of action in respect of which the claim was made in the previous suit; (2) what is the claim made in the present suit; (3) whether the claim made in the present suit could have been made either wholly or in part in respect of the cause of action of the previous suit. In order to arrive at these findings, the two plaints must be compared.

15. But in my judgment this does not mean that in order to apply Order 2, Rule 2 all the allegations made in the two plaints shall have to be taken and the bar imposed shall apply only when these are identical. The allegations are to be looked into only to find out to what extent they disclosed any cause of action. In my opinion, cause of action for this purpose could mean all the essential facts constituting the right and its infringement. If the plaintiff obtained a judgment in his favour on a particular cause of action in the previous suit his claim in that suit must be taken to have been based on that cause of action, and that judgment ought to be conclusive as to the cause of action in respect of which that claim was made. In order then to see what is the cause of action in respect of which the claim in the subsequent suit is made and what is the claim made in it we are to look to the plaint in the subsequent suit.

16. If certain allegation in the plaint discloses the selfsame cause of action which could have supported the claim made in the plaint, then, simply because other additional allegations have also been made in it the plaintiff would not thereby escape the bar imposed by Order 2, Rule 2. If without the additional allegations in the second plaint, the cause of action for the claim made in it be complete, then in that case the additional allegations will not constitute the cause of action at all, and the Court after finding that will have to dismiss the claim under Order 2, Rule 2. If the additional allegations go to constitute a fresh cause of action for the claim made then certainly the cause of action as alleged in the second plaint is different from the cause of action of the first plaint. If the plaintiff fails to establish the additional allegations, he may fail for want of cause of action but his suit will not be hit by the provisions of Order 2, Rule 2. In Title Suit No. 130 of 1930, in the first eight paragraphs of the plaint the plaintiff stated facts in support of his title to the lands of which the then suit lands formed a part. Those facts are now concisely stated in para. 1 of the present plaint. In para. 9 of the previous plaint the plaintiff stated how he took possession of his auction purchased land or how he came in actual occupation of the same by removing the defendants therefrom. These details are not given in the present plaint. In para. 10 of the previous plaint the plaintiff stated how he was dispossessed from some of the plots on 6th Chaitra 1335. His previous suit was in respect of those plots only. In that suit the plaintiff's title to the extent of sixteen annas share was found. It was found that as the auction purchaser of fourteen annas share the plaintiff obtained delivery of possession in December 1928, corresponding to Pous 1335 Rule Section and that the remaining two annas share was also acquired by him by private purchase. The plaintiff's plea of actual possession and dispossession, however, was not accepted by the Court in that case. The learned Munsif observed:

I must find that the story of actual possession between Pous and Chaitra 1335, was a myth.... The defendant had been in an undisturbed possession all along.

17. The lands for which the previous suit was instituted are given in schedule 'kha' in the present plaint. The other lands are given in its schedule 'ka.' The cause of action in respect of the 'ka' schedule lands is given in para. 3 of the present plaint as the adverse decision dated 6th November 1936 under Section 145, Criminal P. Order The Court of appeal below has decreed the plaintiff's claim regarding the lands of schedule 'kha.' There has been no appeal or cross-objection by the defendants in respect of these lands. The only property which is the subject-matter of the present appeal is that given in schedule 'ka' of the present plaint. According to the decision in the previous suit the plaintiff did not succeed in getting actual possession even of the 'ka' schedule lands after the delivery of symbolic possession to him in December 1928. He was therefore possessed of a cause of action in respect of these 'ka' schedule lands also at the time when the previous suit was instituted in respect of the 'kha' schedule lands only. As regards the 'kha' schedule lands the plaintiff then came to the Court with the allegation of some subsequent disturbance of possession. It was found that that 'cause' did not exist. The plaintiff, however, was allowed to succeed in that suit on a different cause which was also covered by his pleadings, namely inability to get actual possession after delivery of symbolic possession and acquisition of sixteen annas title to the lands. According to the findings in the previous suit, the selfsame 'cause of action' was present at that time in respect of all these lands including the present 'ka' schedule lands. It was, however, not necessary to decide this point for the purposes of that suit and in my opinion that finding would not determine the fate of the present suit.

18. In the present suit the allegations in the plaint ascribe the cause of action for the 'ka' schedule lands to the adverse decision of the criminal Court dated 6th November 1936. No doubt there is that adverse decision. But if before that adverse decision there had already been a completed cause of action available to the plaintiff in respect of these lands, this additional fact shall not give him a fresh cause at action without something more. The plaintiff being the rightful owner would, for example, have a fresh cause of action, if he succeeded in taking even forcible possession of the lands though he might have subsequently been made to give up such possession by the due process of law : see Protap v. Durga ('05) 9 C.W.N. 1061, Mamtazuddin v. Barkatulla ('05) 2 C.L.J. 1, and Mir Waziruddin v. Lala Deoki Nandan ('07) 6 C.L.J. 472. The Court of appeal below finds that the plaintiff did not succeed in getting actual occupation of the land after the delivery of symbolio possession. If this finding be allowed to stand then the plaintiff must be said to have been in possession of the cause of action for the relief claimed in the present suit in respect of the 'ka' schedule lands even on the date when he instituted the previous suit and that suit was based on the self-same cause of action though the relief claimed there was only in respect of the 'kha' schedule lands. In my opinion the plaintiff's present suit in that case would be barred by the provision of Order 2, Rule 2, Civil P.C. There is no substance in the second point faintly urged by Mr. Ghosh. If the same facts are to be relied on as constituting the right and its infraction in respect of all these properties then the cause of action will not be different simply because the properties are different. This brings us to the third point urged by Mr. Ghose. The Court of first instance dealt with the matter thus:

It is admitted that there was a case under Section 145, Criminal P.O. Defendant 1 deposed in that case. He deposed in that case that he possessed the share of defendant 7 by virtue of a kabuliyat: vide Ex. 15. This witness also deposed on another occasion that he took Burga Settlement of the entire jama from Afajaddin's wife : vide Ex. 15. Golam Ali deposed that Torap Ali and others, possessed the entire lands : vide Ex. 15b. It is thus clear that Hashem Ali did not possess the land before. There is also no allegation in the written statement that defendant 7 possessed her share of the land through Burgadars. It is not the case of defendant 1 in this suit that he possessed the entire land before 1338. Hashem Ali did not possess the land. Defendant 8 (D.W. 7) is a rich and an influential person. He has got account books to show the amount paid as rent and also the amount which he got as a profit from the disputed land. The account book has not been produced. There is thus no evidence to show that defendant 7 possessed any portion of the land. Hashem Ali deposed in 1936 that he claimed 8 annas share of the land last year and also put in a petition before K.M. Order for getting possession of the same. It is not the defendant's case that Hashem Ali possessed any land from 1338. It appears from bond (Ex. H-2) that defendant l's mother gave usufructuary mortgage of one kani of land to the plaintiff for six years in 1937. Torap Ali admitted in the previous case that the bond was exeouted after the execution of the kobala in favour of defendant 7 and that the plaintiff got the southern plot in question. The plaintiff possessed one kani of land to the south of the homestead as mortgagee up to Chaitra 1833. The defendant's case is that defendant 7 possessed the land to the south of the homestead from 1330, is evidently false. Defendants 1 and 8 jointly filed written statement in Section 145 case. They clearly alleged that Torap Ali and others, possessed the entire lands : vide Ex. 7. It appears that no land to the south of the homestead was included in the previous suit. Defendant 1 admitted in a petition that the plaintiff possessed the portion of the land to the south of the homestead also (vide Ex. 6). It is thus clear that the plaintiff was not out of possession of the entire lands when the title suit was brought. The plaintiff took delivery of possession of the lands through Court. There was difficulty in removing the huts from the homestead as the sale was held in respect of 14 annas share of the property. 9Phe plaintiff had no reason to allow the defendants to possess the Nal land after the delivery of possession. It appears from the copy of the order-sheet (Ex. 14C that defendant 1 applied for an injunction against the plaintiff and two others on 1st December 1931, for forbidding them not to go upon the land. The order was vacated on 16th December 1931, as the plaintiff had taken delivery of possession through Court. It appears from the copy of the judgment (Ex. 13a) that in 1936 an injunction was issued by the S.D. Order of Patuakhali for restraining the defendants and Saroda De Nath or Badsha Mia from entering the plot. On the next day when the plaintiff's men were reaping the paddy, from the land some peadas of Badsha objected and the accused struck the peadas with lejas. The accused were convicted as they had exceeded the right of private defence. The plaintiff has also filed several receipts (Exs. 4 to 5f) to show that he has been paying rent of the lands all along since his purchase. Not a scrap of paper has been produced from the defendant's side to show the payment of rent. It cannot be believed that the plaintiff paid rent for so many years without getting possession of the Nal lands. The defendants have produced a copy of a judgment (Ex. F) a Section 103 case to show that the plaintiff was not in possession of the land. The case was brought by Baser Mridha and others. The copy of the petition has not been filed. There is nothing in the judgment to show that the plaintiff was a party to the case. The case was disposed of before the plaintiff took delivery of possession through Court. The plaintiff did not get his name mutated in respect of 2 annas share of Moyna Bibi and hence his name was not recorded in the Khatian. The judgment in the Section 103 case does not help the defendants.

19. The learned Subordinate Judge while reversing this finding did not at all advert to Ex. 6, Ex. 14c, Ex. 13a and Exts. 4 to 5f and did not consider the circumstances which so much weighed with the learned Munsif and which certainly were weighty considerations. In my opinion, the judgment of the Court of appeal below in this respect is not at all satisfactory. It is difficult to see what the learned Subordinate Judge means by saying : 'It is impossible to believe that although Amurunnessa and Akub Ali were in occupation of the lands and resisted and won the dispute the plaintiffs could be given and had actual possession.'

20. They might have resisted before the execution sale. But from that it does not at all follow that they would conduct in the same way even after their title is gone. In the result this appeal is allowed ; the judgment and decree of the Court of appeal below are set aside and the case is sent back to that Court for re-hearing of the appeal according to law. Costs of this appeal will abide the result.


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