JUDGMENT : O.P. Trivedi, J. This is a Defendant's appeal and arises from a suit for ejectment, arrears of rent and damages filed against him by the Respondents. The dispute relates to a shop and its site to which admittedly U.P. Act III of 1947 did not apply, it being a construction made after 1951 and the lease having been created by the Respondents in 1956. In the trial court the contest mainly centred round the question whether the notice served upon the Appellant was valid or not? On this question the trial court recorded a finding against the Appellant and granted a decree for ejectment, arrears of rent and damages. 2. The Defendant appealed and urged that the disputed accommodation was a building within the meaning of U.P. Act XIII of 1972 which had by then come into force and that he is entitled to the benefit of Section 39 read with Section 40 of the said Act. This plea was overruled by the appeal court on a finding that the accommodation in dispute was not roofed construction when the lease was created in 1956 and, therefore, it was not a building within the provisions of U.P. Act XIII of 1972 (hereinafter called the Act). This decision was based on an earlier litigation between the parties culminating in Second Appeal No. 302 of 1963. In the said appeal a finding was recorded that there was no roof over the disputed accommodation in the year 1956 when the lease was created. This finding operated as res judicata between the parties and, therefore, the appeal court held that the accommodation was not a building and, that the Appellant was not entitled to protection against eviction afforded by Section 39 of the Act. The appeal was in the result dismissed. 3. I have heard Sri Shafiq Mirza, learned Counsel for the Appellant, and Sri Akhtar Husain learned Counsel for Respondents. 4. The learned Counsel submitted that the accommodation in question was a building as defined u/s 3(i) of the Act, as roof was placed upon it subsequent to the creation of tenancy. I find that at no stage did the Defendant Appellant set up the case that a roof had been placed on the disputed accommodation at any stage subsequent to the creation of the tenancy and that, therefore, it became a building within the meaning of the Act. I find that at no stage did the Defendant Appellant set up the case that a roof had been placed on the disputed accommodation at any stage subsequent to the creation of the tenancy and that, therefore, it became a building within the meaning of the Act. No such averment is found contained in the written statement and no application for amendment of written statement was moved before the appeal court in order to introduce any such plea. It is for the first time today that such a suggestion is being made in arguments. In the absence of pleading we cannot proceed on the hypothesis or assumption that subsequent to creation of tenancy the accommodation in question was roofed as this is a question of fact and must depend on the pleadings of parties. In the absence of any such pleading this question of fact cannot possibly arise and one must proceed on the basis of the original defence raised by the Appellant that it was a roofed structure right from the commencement of the tenancy. That plea, however, stood negatived in Second Appeal No. 302 of 1963 and became final u/s 11 Code of Civil Procedure. In the circumstances, the finding of the lower appellate court that the accommodation in question is not a building within the meaning of Section 3(i) of the Act does not disclose any error of law. 5. I would, however, like to observe that from the judgment of the lower appellate court it appears that it was under an impression that an accommodation will not become a building under U.P. Act No. XIII of 1972 if it was not a roofed structure at the inception of the tenancy, but had become roofed at the time of commencement of U.P. Act No. XIII of 1972. If an accommodation was not roofed at the time of creation of the tenancy, but subsequently a roof is placed upon it by the tenant without the landlord's consent then the accommodation cannot be treated as building within the meaning of Section 3(i) of the Act having regard to the decision of this Court in the case of Babu Khan v. Sheo Kumar 1972 AWR 282, but an accommodation which may not be a roofed structure at the time of creation of tenancy will become a building within the meaning of U.P. Act No. XIII of 1972 if a roof is placed upon it by the landlord and to such a case observations made in Babu Khan's case will not apply. With these observations the appeal stands disposed of. 6. No other point was pressed. 7. The appeal is dismissed with costs to the Respondents.