( 1 ) THIS is defendant's second appeal against the judgment and decree dated 94-1975, passed by the Additional District Judge, Morena, confirming the judgment and decree dated 28-6-1974, for ejectment of appellant from the suit house.

( 2 ) FACTS giving rise to this appeal so far as they are material for its decision are as under : the plaintiff-respondent brought the present suit for ejectment under section 12 (1) (a) of the Madhya Pradesh Accommodation Control act, 1961 (for short, 'the Act'), on the allegation that the defendant-appellants are his tenants under rent-note dated 15-11-1967, Ex. P1, on a monthly rent of Rs. 20/- in the suit house, situated in uttampura in the town of Morena. It was further alleged that the defendants were in arrears of rent with effect from 15-11-1967, which they have failed to pay or tender within two months of his forwarding a notice of demand (vide Ex. P. 3) by registered acknowledgement due post No. 192 dated 5-7-1973 which has been returned by them and bears an endorsement of 'refused'. This suit was instituted on 310-1973, wherein a decree for arrears of rent, ejectment and mesne profits have been claimed.

( 3 ) THE defendant-appellants resisted the suit, inter alia, on the ground that (i)the defendants are Jatavas and are as such, entitled to the benefit of the provisions of Section 7 of the Madhya Pradesh Anusuchit Jati Avam An us uc hit janjati Rini Sahayata Adhiniyam, 1967 (Act No. 12 of 1967), (hereinafter referred to as 'the Adhiniyam'); and that (ii) the ground under Section 12 (1) (a) of the Act is not available to the plaintiff-respondent, (iii) and that the plaintiff is not entitled to a decree for ejectment or arrears of rent and mesne profits.

( 4 ) THE trial Court, after trial, decreed the suit. Aggrieved by this judgment and decree the defendants filed an appeal, which has been dismissed by the lower appellate Court. Hence this second appeal.

( 5 ) IN this appeal, Mr. Swami Saran learned counsel for the defendant-appellants, contended that (i) (a) the trial of the suit has been rendered radically defective on account of absence of an issue with respect to the factum of 'refusal' of the notice of demand (Ex. P-3); (b) that the endorsement of 'refusal' on Ex. P-3 has not been proved, as production of the postman was considered necessary in view of denial by the defendant of the plaint averment pertaining to the 'refusal. ' As such, the ground under Section 12 (1) (a) of the act is not available to the plaintiff; (ii) that the Courts below have no jurisdiction to pass decree for ejectment or arrears of rent and/or mesne profits against the defendant in view of the provisions of Section 7 read with Section 2 (4) of the Adhiniyam.

( 6 ) SHRI N. P. Mittal, learned counsel for the plaintiff-respondent, argued in support of the impugned judgment and decree.

( 7 ) HAVING heard the learned counsel for the parties, I have come to the conclusion that the appeal deserves to be partly allowed.

( 8 ) IN plaint para 5, the plaintiff has averred the factum of forwarding the notice of demand of arrears of rent (Ex. P. 3) on 5-7-1973, by registered post acknowledgment due to the defendants, which has been received back with an endorsement of 'refusal'. The defendants have denied these averments. The trial Court has, however, not framed any specific issue on the point. On the basis of these facts, it was contended by Mr, Swami Saran, that framing of a specific issue on the point of notice being refused was vital for decision of the case and omission to frame the same has rendered the trial radically defective. I am afraid this contention cannot be accepted. Firstly, the trial Court has framed Issue No. 3 to the effect that : whether the plaintiff is entitled to get a decree for ejectment? This issue is wide enough to cover the issue said to have been omitted. Parties appear to have understood the Issue No. 3, as framed, to cover the aforesaid dispute, This appears to be the r